Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal at No. 8610-2620-23.
Frances Gralnek, Assistant District Attorney, Philadelphia, for Com., appellant.
Ronal Morman, in propria persona.
Rowley, Wieand and Montemuro, JJ.
[ 373 Pa. Super. Page 361]
The Commonwealth has taken this appeal from an Order of the Court of Common Pleas of Philadelphia County discharging the appellee on his writ of habeas corpus.*fn1
We are asked to decide if the Commonwealth in a habeas corpus proceeding, wherein it is alleged that the Commonwealth failed to establish a prima facie case, is restricted to
[ 373 Pa. Super. Page 362]
the evidence which was produced at the preliminary hearing.
The appellee, Ronald Morman, was arrested by the Philadelphia Police Department and charged with Theft of Services; Receiving Stolen Property; Recklessly Endangering Another Person; and Risking a Catastrophe. These charges resulted when the Philadelphia Police Department requested that the Philadelphia Electric Department investigate an electric hook-up to a bus operating as a variety store in the City of Philadelphia. After examining the hook-up on September 25, 1986, the Electric Company representative was of the opinion that the hook-up was an illegal one. R.R. at 16a. On that same day, the hook-up was removed and Ronald Morman was arrested.
On October 21, 1986, Ronald Morman was afforded a preliminary hearing before the Honorable Francis P. Cadran of the Municipal Court of Philadelphia. At the preliminary hearing, the Commonwealth presented the testimony of the Electric Company representative who had investigated the allegedly illegal electric hook-up. This representative testified that due to the location of the hook-up in a residential area and the manner in which the hook-up was installed "there was a potential there for injury to anyone who may have been in that area." R.R. at 21a. At the conclusion of the Commonwealth's evidence, counsel for Morman argued that the Commonwealth had failed to establish a prima facie case because there was no evidence showing who owned the variety store bus. Thus, Morman's association with the alleged criminal conduct had not been sufficiently proven by the Commonwealth. The Commonwealth argued that because the Electric Company representative had testified that Morman was arrested on the same day that the hook-up was examined and removed, there was sufficient evidence to hold Morman for trial on the specified charges. R.R. at 26a. The Court found that a prima facie case had been established by the Commonwealth.
[ 373 Pa. Super. Page 363]
Thereafter, Morman filed a Motion to Quash Return of Transcript, contending that the Commonwealth had failed to establish a prima facie case at the preliminary hearing because no evidence had been presented concerning ownership of the variety store bus. It is clear that the proper means for testing the finding that the Commonwealth has sufficient evidence to establish a prima facie case is to petition the trial court for a writ of habeas corpus. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). In Philadelphia County, such habeas corpus petitions are entitled as Motions to Quash Return of Transcript from the Preliminary Hearing or Motions to Quash. Op. of Trial Court at 1.*fn2 Our review of the record in the instant case indicates that Morman was on bail at the time he filed his habeas corpus petition. In Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980), our supreme court recognized that "restraints on an accused bound over ...