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09/17/97 COMMONWEALTH PENNSYLVANIA v. CORNELIUS

September 17, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CORNELIUS THORPE, APPELLANT.



Appeal from the judgment of the Superior Court of Pennsylvania entered December 18, 1995 at No. 936 PHL 1995, vacating and remanding the order entered February 1, 1995 in the Court of Common Pleas of Chester County, Criminal Division, at No. 1319 Misc. 1994.

JUDGES BELOW: CCP - Honorable Thomas G. Gavin / SUPERIOR - CIRILLO, TAMILIA, HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Chief Justice Flaherty. Mr. Justice Castille files a Dissenting opinion.

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: September 17, 1997

Cornelius Thorpe was charged with robbery conspiracy and related offenses in January, 1993. The Commonwealth was unprepared to proceed at several preliminary hearings, and after Thorpe had been imprisoned for two months, the case was dismissed.

On October 3, 1993, the charges were refiled, and on August 13, 1994, Thorpe was rearrested. The Commonwealth again was unprepared to proceed at four consecutive preliminary hearings. Again, charges were dismissed on November 14, 1994, this time after Thorpe had spent an additional three months in jail.

Immediately after the dismissal, charges were refiled for the third time. A preliminary hearing was held November 29, 1994, and the district Justice dismissed the case with prejudice on the grounds that a prima facie case had not been presented.

On December 14, 1994, the Commonwealth filed a motion requesting temporary assignment of an issuing authority pursuant to Pa.R.Crim.P 23(b). *fn1 The trial court initially granted the motion ex parte, but upon Thorpe's motion and after a hearing, the court set aside the temporary assignment of issuing authority.

The Commonwealth appealed from the trial court's order and the Superior Court vacated the lower court's order, remanding the case for a fourth arrest and preliminary hearing. We granted allocatur to consider the propriety of the Superior Court's granting of the Commonwealth's request for a temporary assignment of issuing authority.

As a general matter, a defendant may be rearrested after charges have been dismissed at a preliminary hearing so long as the statute of limitations has not expired. *fn2 Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987). The Superior Court has held, however, that in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him, or if the rearrest results in prejudice, the prosecution may be barred. See Commonwealth v. Chermansky, 381 Pa. Super. 129, 133, 552 A.2d 1128 (1989). See also Liciaga v. Court of Common Pleas, 523 Pa. 258, 269, 566 A.2d 246, 251 (1989)(Concurring Op. of Mr. Justice Zappala stating that if a defendant is able to establish that the Commonwealth's repeated refiling of charges is an attempt to annoy or harass, the Commonwealth should not be allowed to present identical evidence before successive magistrates).

The rules of criminal procedure are silent on rearrest, and this court has spoken on the matter of rearrest only twice in plurality opinions. In Liciaga v. Court of Common Pleas, supra, a plurality held that where the Commonwealth has failed to present a prima facie case before a magistrate, that judgment may be reassessed before another magistrate, either by presenting the same or additional evidence. In Commonwealth v. Kline, 521 Pa. 281, 555 A.2d 892 (1989) a plurality held that unless there is a showing of partiality of a magistrate, the president Judge abuses his discretion by granting a request for a new magistrate.

Although the circumstances of this case do not implicate double jeopardy concerns, for jeopardy attaches only when a defendant is "put to trial before the trier of facts," Liciaga, 523 Pa. at 265, 566 A.2d at 249, there is, nonetheless, a related concern, for in double jeopardy cases and in this case the considerable power of the state ...


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