dissenting:
This appeal arises from an order by the court below taxing appellant, who was found guilty on criminal charges, with the costs of his prosecution including costs accruing . from a change of venue granted upon his motion. Appellant was initially charged with costs exceeding $10,000. He objected and the Commonwealth was ordered to provide him with a bill of costs to which he could file exceptions. A hearing on the exceptions was held on September 12, 1975, and the amount was reduced to approximately $8,000 by the lower court, which amount appellant was ordered to pay. This appeal followed.
Appellant, John R. Coder, was convicted in a jury trial of wiretapping, conspiracy and false swearing. Two other charges were dismissed prior to verdict and a motion in arrest of judgment was granted as to the charge of false swearing. The offenses were committed in Lycoming County, while appellant was Mayor of Williamsport. He requested and was granted a change of venue upon claiming his inability to receive a fair trial in Lycoming County as a result of adverse pre-trial publicity. Venue was transferred to Mercer County, 231 miles from Williamsport. The trial lasted two weeks and members of the Lycoming District *517Attorney’s office and witnesses for the Commonwealth were given transportation, meals and lodging when their presence at trial was necessary. Members of the Mercer County District Attorney’s office were also involved with the trial and their expenses were charged to appellant. The hearing court below found that, to the extent of approximately $8,000, these costs and expenses were properly chargeable to appellant.
Initially appellant argues, and a plurality of the court agrees, that requiring him to pay costs accruing from a change of venue constitutes a penalty and exerts a “chilling” effect on the exercise of his federal constitutional right to due process of law, i. e., a fair trial. I disagree.
First, I find the plurality’s failure to come to grips with Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) surprising. Fuller involved an Oregon statute which permitted the courts to require an indigent defendant to repay the state attorney’s fees incurred for appointed counsel, if the indigent defendant were convicted and subsequently financially able to make the repayment. Part III of Fuller confronted and rejected a constitutional analysis logically indistinguishable from the argument the plurality accepts in the instant case. In so doing the High Court emphatically rejected In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969), a case cited for support by appellant herein, and concluded:
“This case [Fuller v. Oregon ] is fundamentally different from our decisions relied on by the petitioner which have invalidated state and federal laws that placed a penalty on the exercise of a constitutional right. . . . Unlike the statutes found invalid in those cases, where the provisions ‘had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them’ . . . . Oregon’s recoupment statute merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so.” Fuller v. Oregon, 417 U.S. at 54, 94 S.Ct. at 2125. [Citations omitted.]
*518Since the statute involved in the instant case has a purpose and effect other than to chill appellant’s assertion of his right to a fair trial, that is, recouping the costs of trial wherein a jury found appellant guilty beyond a reasonable doubt, appellant’s argument is “wide of the constitutional mark.” Id. at 52, 94 S.Ct. 2116. It simply will not do to dispose of Fuller as “primarily” an equal protection case; Fuller still makes constitutional law in terms of due process. Nor has Fuller been undermined by United States v. Deas, 413 F.2d 1371 (5th Cir. 1969), a circuit court decision where the court merely mentioned the question of a potential chilling effect resulting from the government’s recoupment of the costs of prosecution. Because that issue was not raised in Deas it was not discussed. In short, Deas is “pertinent” only in the sense that it is prophetic; on the issue at hand it is not instructive.
Judge Spaeth’s concurring opinion does not surmount Fuller v. Oregon, but employs the Pennsylvania Constitution in support of striking down the recoupment statute as unconstitutional because it is “unfair.” However, Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) clearly prohibits our raising constitutional arguments to strike down statutes. Appellant in the instant case does not argue that imposing costs of prosecution is unfair under the Pennsylvania Constitution, he argues that it chills his right to a fair trial under the Federal Constitution. If these distinctions are simply semantic as Judge Spaeth suggests, how is it that they produce different results? The Commonwealth has not had the opportunity to brief and argue the “due process clause” of the Pennsylvania Constitution, therefore it is improvident for us to analyze the recoupment statute in that light.
However, what troubles me most about the court’s decision today is not its disregard for Fuller v. Oregon manifested in the plurality opinion, nor the unsolicited reliance on the Pennsylvania Constitution expounded in the concurring opinion; for if Fuller had not been decided by the United States Supreme Court, and had appellant argued the illegality of the recoupment statute in light of the constitution of *519this Commonwealth, I nevertheless would not agree that requiring appellant to pay the costs of prosecution is unconstitutional.
It is clear that the legislature has determined that a person who commits a crime thereby triggering the prosecu-torial machinery of the Commonwealth, should repay the Commonwealth the necessary costs and expenses of prosecution, if he is found guilty beyond a reasonable doubt, and is financially able to do so. I can find nothing fundamentally unfair with that notion. Indeed, assessing a convicted defendant for the costs of prosecution has not been held to offend notions of fundamental fairness previously. What appears to trouble a majority of the court is that, on occasion, the necessary costs and expenses can be very substantial. Obviously, when a person commits a crime which stirs wide community interest, either because the crime is heinous or its perpetrator is a person invested with a public trust, publicity will follow inevitably. The ensuing publicity should be readily foreseeable by the perpetrator of the crime, so that it is neither arbitrary, capricious nor unreasonable to hold him responsible for the dysfunction his conduct caused the criminal justice system. If he is innocent of the charges, he will bear none of these costs.
Furthermore, a majority of the court today abjures any consideration of the facts which the legislature may have weighed in determining that the instant statute was proper legislation. Instead, the court simply feels that the statute operates, on occasion, unfairly. In “analyzing” the constitutionality of this statute in this fashion the majority improperly and dangerously encroaches on legislative province. Even if I were to agree that the law is misguided, I would not conclude that it is therefore unconstitutional. See James v. Strange, 407 U.S. 128, 133, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). “Courts cannot be placed in a position, nor should they have the appearance, of being superlegisla-tive bodies that control legislation because it is unwise, or is not in accord with the ideas of the judges.” Suermann v. Hadley, 327 Pa. 190, 194, 193 A. 645, 648 (1937). Unfortu*520nately, today’s decision bespeaks a disregard for this injunction; it sets an example for this court which, if followed, can only lead to improper exercise of our limited power to strike down legislation which is truly unconstitutional. See generally H. Chase & C. Ducat, Constitutional Interpretation 59-68 (1974). Since I cannot conclude that this statute is arbitrary, capricious and unreasonable because it requires a convicted person to pay the costs and expenses which his conduct has caused the Commonwealth to incur, I cannot agree that it is unconstitutional.1
Having determined that appellant’s constitutional rights have not been infringed by requiring him to pay the costs of prosecution, I would reach appellant’s remaining arguments. Appellant also contends that Rule 313(b) of the Rules of Criminal Procedure places the costs of a change of venue on the county, not the defendant. Authority for imposing costs upon a defendant convicted of the charges against him is found in the Act of March 31, 1860, P.L. 427, § 64, 19 P.S. § 1223 (1964), providing that “in all cases of conviction of any crime, all costs shall be paid by the party convicted.” See Commonwealth v. Houck, 233 Pa.Super. 512, 335 A.2d 389 (1975). Included as a portion of the costs which may be imposed are the expenses of the district attorney. The Act of August 9, 1955, P.L. 323, § 1403, 16 P.S. § 1403 (1956) provides as follows:
“All necessary expenses incurred by the district attorney or his assistants or any officer directed by him in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, upon approval thereof by the district attorney and the court, shall be paid by the county from the general funds of the county. In any case where a defendant is convicted and sentenced to pay the costs of prosecu*521tion and trial, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant.”
Rule 313(b), upon which appellant relies does not relieve him of responsibility for the costs of prosecution placed upon him by the above statutes in the event of his conviction. The rule provides: “All costs accruing from a change of venue shall be paid by the county in which the complaint was filed.” This rule does not operate to fix the costs upon the county instead of the defendant but, rather, determines as between the two counties which one shall initially bear the expense of a change of venue. It does not prevent the county from recouping the costs expended from the defendant upon conviction, but specifies which county has the responsibility of securing payment from the defendant. Our Supreme Court in Commonwealth v. Davy, 456 Pa. 88, 317 A.2d 48 (1974), interpreting Act of July 8, 1941, P.L. 288, § 24, 19 P.S. § 191.24 a section of the Uniform Extradition Act similar to Rule 313(b), applied 19 P.S. § 1223, supra stating, the county under 19 P.S. § 1223, supra, may recoup from the defendant as a part of the costs of prosecution monies expended by the county in extraditing the defendant, although the costs of extradition are initially assessed against the county under 19 P.S. § 191.24, supra. Neither statute excludes the costs accruing from a change of venue as part of the cost which may be imposed upon the defendant, nor does the rule relieve appellant from liability for these costs. Thus, the expenses of the Lycoming and Mercer County District Attorneys’ offices, as well as the expenses incurred for the Commonwealth’s witnesses, may be recouped from appellant.
Appellant also claims that the District Attorney failed to file a bill of costs which demonstrated its reasonableness and fairness specifically enough. As discussed above, a defendant may only be required to pay costs authorized by statute. 16 P.S. § 1403, supra, permits the expenses of the District Attorney and those who assist him in the prosecution to be *522included as a part of the costs, but only to the extent that those expenses are “necessary.” The District Attorney must provide a defendant, who is charged with costs, a reasonably specific bill of costs and show how such costs were necessary to the prosecution. In the instant case, the District Attorney and the County Controller initially submitted a lump sum of over $10,000 for court approval, and, apparently ex parte, the court approved an order for appellant to pay that sum. Only after appellant objected and court ordered a bill of costs to be filed was any itemization of costs presented to appellant. Some expenses, such as jurors’ expenses and those of certain court personnel, were found to be improperly charged to appellant. As to the other categories of expenses, the District Attorney did not demonstrate how the expenses of various witnesses or other persons assisting the district attorney were necessary to the prosecution. During the evidentiary hearing, the court below erred by placing the burden on appellant to show the costs were unnecessary, rather than requiring the Commonwealth to adequately demonstrate that these costs were necessary.
Appellant also argues that, since he was convicted of only two of the five charges, he should be required to pay no more than forty percent of the costs. In Commonwealth v. Soudani, 193 Pa.Super. 353, 165 A.2d 709 (1960), the defendant made a similar claim when the first of the two counts upon which he was convicted was set aside by the Supreme Court as being only a differing degree of the second. This court refused to apportion the costs between the first and second counts since all the costs were necessary to try the defendant on the second count. We have nothing in the record before us indicating what costs, if any, were solely attributable to the charges which were dismissed. We cannot, therefore, arbitrarily apportion costs solely on appellant’s conviction on only two of the charges. If the Commonwealth demonstrates by a preponderance of the evidence that all the witnesses were reasonably necessary to prove the charges for which appellant was convicted, the Commonwealth may recover the expenditures arising from their *523attendance at the trial. When the new hearing is held on the question of necessary costs, it should be determined whether any of the costs are solely attributable to the charges which were dismissed in granting the motion in arrest of judgment. See Commonwealth v. Smith, 239 Pa. Super. 440, 361 A.2d 881 (1976). As in a lawsuit for any other unliquidated debt, the burden of justifying the costs by the preponderance of evidence is on the plaintiff, the Commonwealth herein.
While the lower court was correct in ruling that appellant may constitutionally be required to pay costs of prosecution deriving from a change of venue, the court erred in ruling that the bill of costs incurred was sufficiently specific to meet the Commonwealth’s burden of proof. , Hence, I would remand for a new hearing on the bill of costs.2
HOFFMAN and VAN der VOORT, JJ., join in this dissenting opinion.. I also note that in Judge Spaeth’s “fairness” analysis no consideration is given to the veracity of the offending news accounts. In other words, if a person commits a particularly heinous crime which is given widespread media coverage, the perpetrator is not “responsible” for the costs attending a change of venue despite the fact that the reportage is not inflammatory and entirely accurate.
. The hearing does not necessitate the calling of the witnesses who appeared at trial. However, testimony from knowledgeable persons in the district attorney’s office to substantiate the bill of costs may be required.