Appeal from the Order of the Superior Court entered July 10, 1987 at No. 2212 Philadelphia 1986, affirming the Order of the Court of Common Pleas of Northampton County entered August 5, 1986 at Misc. No. 296-1986 (transferred to Misc. No. 284-1985) Pa. Super. , 531 A.2d 527 (1987).
Stuart T. Shmookler, Allentown, for appellant.
Daniel G. Spengler, Asst. Dist. Atty., Stuart Suss, Deputy Dist. Atty., for amicus -- The Dist. Atty. of Chester County.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., and Zappala, JJ., files concurring opinions. Papadakos, J., files a dissenting opinion in which McDermott, J., joins.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The issue presented by this appeal is whether the president judge of a court of common pleas may order the
temporary assignment of a district justice to serve in another magisterial district pursuant to Pa.R.Crim.P. Rule 23(b),*fn1 to replace a district justice who has dismissed criminal charges against an accused and who has testified that he will dismiss the charges again upon the rearrest of the accused if the facts presented at the second preliminary hearing are the same or if a witness testifies to different facts.
Appellant, Henry Kline, the Mayor of Waltnutport, Pennsylvania, allegedly broke into the offices of the Borough Manager on March 2, 1985, and made an illegal search thereof. Appellant also allegedly threatened to fire Patrolman Peter G. Wayda, an alleged fellow participant in the break-in, if Wayda talked to those investigating the break-in. Appellant was arrested and charged with criminal trespass (18 Pa.C.S.A. § 3503); official oppression (18 Pa.C.S.A. § 5301); criminal conspiracy (18 Pa.C.S.A. § 903); threats and other improper influence in official matters (18 Pa.C.S.A. § 4702); intimidation of witnesses (18 Pa.C.S.A. § 4952); and obstructing the administration of law or other government functions (18 Pa.C.S.A. § 5101).
At appellant's preliminary hearing, all charges except criminal trespass and criminal conspiracy were dismissed. The Commonwealth subsequently filed an application for change of venue in the Court of Common Pleas of Northampton County, in order to refile all of the original charges before a different district justice. The Court of Common Pleas of Northampton County granted the Commonwealth's application following a hearing at which the only testimony presented was that of the district justice before whom the preliminary hearing had been held. The district justice testified that he would dismiss the charges again if the
same testimony were presented and he would question the credibility of any witness who ...