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COMMONWEALTH PENNSYLVANIA v. ROBERT MCGINLEY (06/05/89)

submitted: June 5, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT MCGINLEY



Appeal from the Order of January 13, 1989 in the Court of Common Pleas of Luzerne County, Criminal Division, No. 2114 of 1988.

COUNSEL

Joseph Giebus, Asst. Dist. Atty., Wilkes Barre, for Com., appellant.

Harry P. Mattern, Wilkes Barre, for appellee.

Brosky, Beck and Cercone, JJ.

Author: Cercone

[ 386 Pa. Super. Page 549]

This is an appeal from the order of the Court of Common Pleas of Luzerne County denying appellant's petition for writ of certiorari pursuant to 42 Pa.C.S.A. § 934.*fn1 We reverse.

On June 12, 1988, appellee was charged with the summary offense of patronizing prostitutes.*fn2 A hearing on the charge was scheduled for June 27, 1988. On that date, however, a detective from the police department of the city of Wilkes-Barre, which had filed the charge following a

[ 386 Pa. Super. Page 550]

    police "sting" operation, withdrew the charge against appellee. The district justice denied appellee's objection to the withdrawal of the charge, and no hearing was held.

On July 19, 1988, the police department filed two new summary offense citations against appellee. One of the new citations charged appellee with the same offense that he was originally charged with, i.e., patronizing prostitutes, 18 Pa.C.S.A. § 5902(a). The other new citation charged appellant with an additional offense: criminal solicitation.*fn3 At the evidentiary hearing on these charges, appellee moved for dismissal of the citations. Following the hearing, on September 21, 1988, the district justice dismissed the citations on the basis that they had not been properly issued by the Commonwealth.

Appellant [the Commonwealth] then filed a petition with the lower court for a writ of certiorari, which the lower court denied. The instant timely appeal followed.

On appeal, appellant contends that the lower court erred in finding that the withdrawal of the original charge and the filing of new citations resulted in actual prejudice to appellee under Pa.R.Crim.P., Rule 90, 42 Pa.C.S.A.*fn4 Before addressing appellant's contention, we note first, as did the lower court, that the issuance of a writ of certiorari is within the discretion of the court of common pleas in its reviewing capacity. Commonwealth v. Cook, 226 Pa. Super. 273, 276, 308 A.2d 151, 153 (1973). In ...


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