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COMMONWEALTH PENNSYLVANIA v. KENNETH ALLEM (10/13/87)

filed: October 13, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH ALLEM, APPELLANT



Appeal from an Order entered March 17, 1986 in the Court of Common Pleas of Bucks County, Pennsylvania at No. 86-2-62, Criminal Division (139 Misc. 1986).

COUNSEL

Michael Yanoff, Lansdale, for appellant.

Andrew Demarest, Assistant District Attorney, Doylestown, for Com.

McEwen, Del Sole and Kelly, JJ. Del Sole, J., files a concurring and dissenting opinion.

Author: Kelly

[ 367 Pa. Super. Page 177]

This case involves an appeal from an order granting the Commonwealth's motion for temporary assignment of issuing authority to a judge of the court of common pleas. We affirm.

On January 10, 1986, a complaint was filed with District Justice J. Robert Hunsicker charging appellant with corruption of minors (18 Pa.C.S.A. § 6301), indecent assault (18 Pa.C.S.A. § 3126), and indecent exposure (18 Pa.C.S.A. § 3127) relating to events occurring from the summer of 1983 until February 7, 1984. The district justice found probable cause and authorized the issuance of a warrant the same day. A preliminary hearing was scheduled for February 13, 1986. However, neither the affiant, Detective Stephen Battershell, nor any of the Commonwealth's witnesses appeared for the hearing. District Justice Hunsicker called the detective to determine why he had not appeared. Detective Battershell explained that he had confused the dates of the preliminary hearing and asked that he be granted a continuance. District Magistrate Hunsicker, however, dismissed the complaint and discharged the appellant.

On February 26, 1986, Detective Battershell refiled the criminal complaint against appellant. District Justice Hunsicker again found probable cause for issuance of process and a summons was issued that day. However, before a preliminary hearing could be held, the Commonwealth filed a motion to have a judge of the Court of Common Pleas temporarily assigned as issuing authority*fn1 to conduct the preliminary hearing in the instant case. Appellant was served with the written motion and filed a written answer. An informal hearing on the motion was held on March 13, 1986, during which oral argument was presented by counsel. The motion was granted by order of the Honorable

[ 367 Pa. Super. Page 178]

Isaac S. Garb, President Judge, on March 17, 1986. Notice of appeal was filed on March 21, 1986.

On April 9, 1986, President Judge Garb filed a Memorandum Opinion in support of the order which explained:

At the hearing on the 'change of venue' application, it became apparent that there was a disagreement between the Commonwealth and the defendant as to the basis for the discharge by the District Justice. The Commonwealth contended that the discharge was effected based upon the application of the two year statute of limitations. The defense contended that the discharge was based upon the failure of the Commonwealth to present any evidence. Conceivably, although we cannot be sure, the reason for the discharge might have some effect on the question of whether the Commonwealth can refile the complaint and rearrest the defendant. By the same token, there may very well be various circumstances why the statute of limitations may not have run merely by the lapse of two years from the date of the alleged offense. See the Act of April 28, 1978, P.L. 202, No. 53, 42 Pa.C.S.A. 5554.

In view of the possible uncertainty regarding the reasons for the discharge, it occurred to us that the District Justice may be required to testify at a preliminary hearing. That being the case, we determined that the interests of justice would dictate that the hearing be held before someone other than the original committing magistrate. For purposes of convenience, it made sense to assign it to a Judge of this Court rather than another District Justice.

The primary reason for our order, however, was concern for the young victim. If the statute of limitations is a bar to further prosecution, then we can see nothing to be gained but perhaps a great deal to be lost by requiring this victim to testify in vain. Therefore, we deemed it appropriate to retain the matter here so that the question of the statute of limitations can be explored and perhaps

[ 367 Pa. Super. Page 179]

    decided without the necessity of holding a full scale preliminary hearing on the merits.

Trial Court Opinion at 2-3.

On appeal, appellant contends that the Commonwealth failed to establish any reason why a hearing before District Justice Hunsicker would not result in a fair and impartial proceeding and that the trial court erred in granting the motion. We agree that the reasons stated by the common pleas court are inadequate to sustain the order. Nonetheless, "[a] ruling or decision of a lower court will be affirmed if it can be supported on any basis despite the lower court's assignment of a wrong reason." Commonwealth v. Terry, 513 Pa. 381, 402, 521 A.2d 398, 409 (1987), citing Sherwood v. Elgart, 383 Pa. 110, 177 A.2d 899 (1955). Because we find the order properly sustainable on alternate grounds, we affirm the order.

I.

The common pleas court states two reasons for its decision to grant the order: 1) that the district justice might be required to testify at the preliminary hearing; and 2) that by retaining the matter before the Court of Common Pleas the statute of limitations issue could be resolved first, possibly eliminating the need for the alleged child victim to be subjected to pointless ...


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