Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, Misc. No. 28 Jan. 1988.
Patricia E. Coonahan, Assistant District Attorney, Cheltenhan, for Com., appellant.
Michael J. D'Aniello, Norristown, for appellee.
Rowley, Wieand and Beck, JJ.
[ 381 Pa. Super. Page 130]
The Commonwealth has appealed from an order granting habeas corpus and dismissing criminal charges against James Paul Chermansky because on two prior occasions the charges were dismissed when essential prosecution witnesses failed to appear for a preliminary hearing.
Chermansky was arrested on July 5, 1987 and charged with aggravated and simple assault, recklessly endangering another person, disorderly conduct, and possessing an instrument of crime as a result of an altercation which had occurred on the preceding day. At the preliminary hearing on July 21, 1987, the complaining witnesses, James Oney and Lorenzo Masadden, failed to appear. Consequently, the charges were dismissed. Chermansky was then rearrested, and a second preliminary hearing was scheduled for September 8, 1987. When the complaining witnesses again failed to appear, the charges were dismissed a second time. Chermansky was then arrested for a third time, but this time he filed a petition for habeas corpus.
At the hearing thereon, Chermansky did not testify or produce evidence. Presenting testimony on behalf of the Commonwealth were Officer Joseph Dewees, a Norristown policeman and the prosecuting officer; James Oney; Michelle Farrell, the mother of Lorenzo Masadden, a juvenile; and John White, an alleged eyewitness. Dewees testified that Oney and Masadden, the alleged victims, had been notified of the first preliminary hearing and had appeared five minutes after the magistrate had dismissed the charges. Dewees testified also that he did not know whether Oney and Masadden had been given notice of the second preliminary hearing. The witnesses confirmed the prosecuting officer's testimony regarding the first preliminary
[ 381 Pa. Super. Page 131]
hearing and testified uniformly that they had not been given notice of the second preliminary hearing. The trial court, however, determined that their testimony was not credible and found that they had no intention of ever testifying against Chermansky. The court said:
Although the delay in the present case is the result of the Commonwealth's attempts to secure the attendance of witnesses, it is an unreasonable delay where there is no realistic expectation that the alleged victims will testify. The anxiety, concern, and embarrassment that necessarily attend the repeated filing of criminal charges and rearrest of a Defendant must end at some point in time. After two attempts at a preliminary hearing where duly notified Commonwealth witnesses do not appear, that time has arrived.
The habeas corpus petition, therefore, was granted, and the charges against Chermansky were dismissed. The Commonwealth appealed.
The law in this Commonwealth is that a defendant may be rearrested after the charges against him have been dismissed at a preliminary hearing so long as the period prescribed by the statute of limitations has not expired. See: Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). See also: Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Riggins Case, ...