Concurring and Dissenting.
¶ 1 I join in that portion of the erudite opinion of the majority which provides that the three charges dismissed by District Justice Walter F. Gadzieki following the preliminary hearing on October 4, 2000, were properly reinstated by the Commonwealth. Rule 5447 of the Pennsylvania Rules of Criminal Procedure provides for charges to be reinstituted against a defendant following “withdrawal or dismissal”— when the attorney for the Commonwealth approves “in writing, the refiling of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.” Pa.R.Civ.P. 544 (emphasis supplied).8 In the instant case, District Justice Gadzieki dismissed the charges of theft by extortion, receiving stolen property, and criminal attempt, following the October 4, 2000, preliminary hearing. Once District Attorney Castor signed the request for reinstitution of those criminal charges on December 20, 2000, those charges could be reinstated with or without new evidence, so long as the District Attorney believed in good faith that a pri-ma facie case could be presented by the Commonwealth. Where a district justice has concluded, correctly or incorrectly, *74that the Commonwealth has failed to establish a prima facie case, the Commonwealth’s sole remedy is to re-arrest since the district justice’s order is an interlocutory, non-appealable order.
[A] determination that the Commonwealth has failed to establish a prima facie case does not preclude a reassessment of that judgment before another district justice either by presenting the same evidence or by presenting a case with additional evidence. Under such circumstances the need to appeal to a higher tribunal does not exist because the initial determination does not preclude a subsequent finding to the contrary.
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In this Commonwealth, it is well-settled that the dismissal of charges after a preliminary hearing is interlocutory in nature and does not constitute a final order. Commonwealth v. Cartagena, 482 Pa. 6, 893 A.2d 350 (1978); Commonwealth v. Hetherington, [460 Pa. 17, 331 A.2d 205 (1975) ] supra. “A finding by a committing magistrate that the Commonwealth failed to establish a pri-ma facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Commonwealth v. Genovese, supra, 493 Pa. at 69 n. 7, 425 A.2d at 369 n. 7, citing Commonwealth v. Hethering-ton, supra.
Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 266-267, 566 A.2d 246, 249-250 (1989).
¶ 2 While dicta contained in Commonwealth v. Moore, 749 A.2d 505 (Pa.Super.2000), which involved an appeal from an order granting a writ of habeas corpus and not a rearrest following a preliminary hearing, may have inspired some uncertainty, the decisions of our Supreme Court on the subject and Rule 544 itself could not be clearer in authorizing rearrest in such cases with or without new evidence. See, e.g.: Commonwealth v. LaBelle, 531 Pa. 256, 259, 612 A.2d 418, 419-420 (1992); Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Commonwealth v. ex rel. Fitzpatrick Mirarchi, 481 Pa. 385, 390, 392 A.2d 1346, 1348 (1978).
¶ 3 However, an essentially different issue is triggered by the ruling of the learned Judge Maurino J. Rossanese which held that the District Attorney could not reinstitute the charges of threats and other improper influence in official and political matters, 18 Pa.C.S. § 4702, and official oppression, 18 Pa.C.S. § 5301, and proceed to a second preliminary hearing, since those charges had been the subject of the writ of habeas corpus issued by the distinguished Judge William W. Vogel on December 21, 2000.
¶ 4 The March 1, 2001, order of Judge Rossanese from which the Commonwealth took the instant appeal, was not an order entered by an “issuing authority”, but rather was an order entered by a commissioned judge of the Court of Common Pleas after a hearing on a writ of habeas corpus pursuant to Section 6502 of the Judicial Code, 42 Pa.C.S. § 6502.
¶ 5 Rule 544 of the Rules of Criminal Procedure has no application to an order of the Court of Common Pleas granting habeas corpus relief, which is an immediately appealable order. See: e.g. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999); Commonwealth v. Karlson, 449 Pa.Super. 378, 674 A.2d 249, 250, n. 3 (1996).
The great writ of habeas corpus ad sub-jiciendum was designed to test the legality of the restraints upon an accused’s liberty. The Habeas Corpus Act of 1785 is entitled “[a]n Act for the *75better securing personal liberty, and preventing wrongful imprisonments.” Its preamble states that “personal liberty is a principal blessing derived from free constitutions of government, and certain methods of proceeding should be prescribed, so that all wrongful restraints thereof may be easily and speedily redressed.” The right to the protections afforded by this writ have long been part of our Commonwealth’s history. Our state constitution has provided that “the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.” Pa. Const., art. 1, § 14. Blackstone said of this remedy: “The great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention.” 3 W. Blackstone, Commentaries 131. In discussing the federal constitution’s habeas corpus provision, see U.S. Const., Art. 1, § 9, the Supreme Court has stated:
We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence * * * Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24,1789, * * * habeas corpus was early confirmed by Chief Justice John Marshall to be a “great constitutional privilege.” * * * Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. * * * Fay v. Noia, 372 U.S. 391, 401-102, 83 S.Ct. 822, 827-830, 9 L.Ed.2d 837 (1963).
Commonwealth v. Hess, 489 Pa. 580, 585-586, 414 A.2d 1043, 1045-1046 (1980) (footnote omitted).
¶ 6 Our legislature has provided a statutory framework for the exercise of the constitutional right to petition for habeas corpus relief. Section 6502(a) of the Judicial Code provides: “Any judge of a court of record may issue the writ of habeas corpus to inquire into the cause of detention of any person or for any other lawful purpose.” 42 Pa.C.S. § 6502(a). Section 6503(a) of the Judicial Code provides, in relevant part, that “an application for ha-beas corpus to inquire into the cause of detention may be brought by or on behalf of any person restrained of his liberty within this Commonwealth under any pretense whatsoever.” 42 Pa.C.S. § 6503(a).
It is settled that a petition for a writ of habeas corpus is the proper means for testing a pre-trial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Morman, 373 Pa.Super. 360, 363, 541 A.2d 356, 357 (1988); see also Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). A pre-trial petition for a writ of habeas corpus, therefore, is similar in purpose to a preliminary hearing. See Commonwealth v. Morman, supra, 373 Pa.Super. at 365, 541 A.2d at 359. “ ‘ The primary reason *76for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection Id. (citations omitted). Thus, the focus of a pre-trial habeas petition is on “whether sufficient Commonwealth evidence exists to require a defendant to be held in government ‘custody’ until he may be brought to trial.” Id., 373 Pa.Superior Ct. at 367, 541 A.2d at 360. In making this pre-trial determination, the habeas court is not limited to reviewing the evidence presented at the preliminary hearing; instead, “the Commonwealth may present additional evidence at the habeas corpus stage in its effort to establish at least prima facie that a crime has been committed and that the accused is the person who committed it.” Id., 373 Pa. Superior Ct. at 365-366, 541 A.2d at 359.
Commonwealth v. Scott, 396 Pa.Super. 339, 578 A.2d 933, 936-937 (1990), appeal denied, 528 Pa. 629, 598 A.2d 283 (1991) (emphasis supplied).
A petition for habeas corpus relief must specifically allege facts, which if true would entitle the defendant to an award of writ of habeas corpus. Balsamo v. Mazurkiewicz, 417 Pa.Super. 36, 611 A.2d 1250 (1992). However, where a defendant requests a writ of habeas corpus on the grounds that the Commonwealth has failed to establish a prima facie case, the Commonwealth may present further evidence to ensure that it has established a prima facie case. Commonwealth v. Morman, 373 Pa.Super. 360, 541 A.2d 356 (1988) (the purpose of a habeas corpus proceeding is not merely to review the prior preliminary hearing but rather to determine the legality of the existing restraint on the petitioner’s liberty). The evidence may consist of evidence previously presented at the preliminary hearing as well as any additional evidence. Id.
Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876, 879 (1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (1995) (emphasis supplied).
¶ 7 The legislature, aware that the Commonwealth is under no restriction at the habeas hearing as to the nature or the volume of evidence which it may produce in an effort to establish a prima facie case, and, also aware of the Commonwealth’s right to an immediate appeal from an adverse decision by the habeas court, has prohibited the rearrest of a defendant by the Commonwealth based on substantially the same facts. Section 6505 of the Judicial Code provides, in relevant part:
Any person who shall ... without express authorization from a judge of a court of record, recommit on substantially the same facts and circumstances any person set at large upon a habeas corpus, ... commits a misdemeanor of the second degree.
42 Pa.C.S. § 6505 (emphasis supplied).
¶ 8 I am of the opinion that the legislature purposely utilized the phrase “facts and circumstances” rather than the phrase “same evidence” when it prohibited the rearrest of an individual released by a judge of the Court of Common Pleas after a habeas hearing. The reason for the use of the phrase “facts and circumstances” is that the Commonwealth, in response to a petition for writ of habeas corpus, is not restricted by the evidence produced at the preliminary hearing but rather is free to and in the exercise of its duties should produce all evidence at its disposal necessary to establish a prima facie case. A *77hearing on a writ of habeas corpus, 42 Pa.C.S. § 6504, is a constitutionally based legal challenge addressed to the ability of the Commonwealth to establish a -prima facie case against the defendant. No legitimate purpose is served by allowing the Commonwealth to decline to produce evidence in response to a writ of habeas corpus — although, apparently, that is precisely what occurred in the instant case.
¶ 9 These settled principles of law were the basis for the holding of our Supreme Court in Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975), which I believe controls the resolution of this issue. The defendant in Hetherington was a Commonwealth title inspector arrested on charges of blackmail, extortion, receiving a bribe, and malfeasance, misfeasance, and nonfeasance of office, as a result of accusations by a motor vehicle dealer that the defendant had offered to “handle” certain title irregularities for him.
¶ 10 Following the preliminary hearing, all charges other than blackmail and extortion were held for trial. The defendant then filed, and a judge of the Court of Common Pleas granted, a “Motion to Quash” the four charges on which he had been held over by the magistrate. The Commonwealth then filed a petition to rearrest the defendant on all charges, including those dismissed by the Court of Common Pleas. The trial court denied the petition without a hearing, the Superior Court affirmed, and the Supreme Court granted allowance of appeal.
¶ 11 The Supreme Court, noted that the rule, applicable even when a judge of the Court of Common Pleas is sitting as a committing magistrate, is that where charges are dismissed after the preliminary hearing for failure to establish a pri-ma facie case, the Commonwealth’s “only recourse ... was rearrest.” Id. at 22, 331 A.2d at 208. The Supreme Court held, as to the four charges which had been dismissed by the Court of Common Pleas in response to the defendant’s motion, that the Commonwealth was precluded from collaterally attacking the ruling of the trial court by rearresting the defendant as a result of the failure of the Commonwealth to file a timely appeal from the trial court’s order:
The confusion surrounding the second issue is in large measure due to a misunderstanding as to the nature of the proceeding involved. The appellee incorrectly styled his application as a “Motion to Quash” the transcript of the committing magistrate which he asserts to be in the nature of a demurrer. A demurrer however is a trial motion which is properly entertained only after the Commonwealth has presented it case in chief. 1937, June, 5, P.L. 1703, No. 357 § 1; 19 P.S. § 481. The established and accepted method for testing a finding of a prima facie case pre-trial, within this jurisdiction, has been by a writ of habe-as corpus. 1937, July 1, P.L. 2664, § 2; 12 P.S. § 1893.
Nor can we accept the Commonwealth’s position that the proceeding before the second common pleas judge should be considered as a petition for rearrest. This ignores the fact that the committing magistrate originally held these charges for action by the grand jury. When the matter was reviewed by the first common pleas judge it was in the nature of a petition for a writ of habeas corpus which is a proper subject for appellate review. Act of May 25, 1951, P.L. 415, § 7 as amended, Act of June 3, 1971, P.L. 143, No. 6, § 1,12 P.S. § 1907 (Supp.1974-75). See also Commonwealth ex rel. Tiller v. Dye, 111 Pa.Super. 388, 391, 110 A.2d 748 (1955) and cases cited. The Commonwealth’s failure to perfect a timely appeal from that order precludes a consideration of the merits at this time.
*78Commonwealth v. Hetherington, supra at 28-24, 331 A.2d at 209. Accord: Commonwealth v. McNair, 29 D & C 2nd 585 (Allegheny Co.1962).
¶ 12 In the instant case, in response to the properly filed initial motion for writ of habeas corpus, the Commonwealth was required to produce all evidence in its possession which was necessary to establish a prima facie case against the appellee Car-bo as to the charges bound over by the district justice. For reasons not discernible from the record, the Commonwealth did not present the testimony of the other officers which it now claims would have sufficed to establish a prima facie case9 and, after submitting its memorandum of law in opposition to habeas relief, indicated to Judge Vogel that it no longer opposed habeas corpus relief. The order subsequently issued by Judge Vogel was an appealable order and one which, under Section 6505 of the Judicial Code, the Commonwealth may not now disregard.
¶ 13 Our scope of review of an order granting habeas corpus relief is well settled:
In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n. 5 (Pa.Cmwlth.1996) (citing Commonwealth v. Kowalek, 436 Pa.Super. 361, 364, 647 A.2d 948, 949 (1994)). The Commonwealth has the burden to show probable cause that the defendant committed the offense. Id. An appellate court must generally consider whether the record supports the trial court’s factual findings, and whether the inferences and legal conclusions drawn from those findings are free of error. See Commonwealth v. Besch, 544 Pa. 1, 2 n. 1, 674 A.2d 655, 655 n. 1 (1996); Commonwealth v. Gordon, 546 Pa. 65, 73, 683 A.2d 253,257 (1996).
Commonwealth v. Hock, 556 Pa. 409, 414-415, 728 A.2d 943, 945 (1999) (footnote omitted).
¶ 14 Thus, while I agree with my learned colleagues of the majority that the Commonwealth may rearrest on the charges dismissed by District Justice Gadzicki, I share the view of Judge Rossanese that, where the Commonwealth failed to offer evidence to establish a prima facie case at the first habeas hearing, and failed to perfect a timely appeal from the decision of Judge Vogel, the Commonwealth may not rearrest on the charges of threats and other improper influence in official and political matters, 18 Pa.C.S. § 4702, and official oppression, 18 Pa.C.S. § 5301.
¶ 15 Judge TODD joins.. Pa.R.Crim.P. 544 provides:
Rule 544. Reinstituting Charges Following Withdrawal or Dismissal (A) When charges are dismissed or withdrawn at, or prior to a preliminary hearing, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the refiling of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.
(B) Following the refiling of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 132 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.
."Issuing authority” is defined by Rule 103 of the Pennsylvania Rules of Criminal Procedure as "any public official having the power and authority of a magistrate, a Philadelphia bail commissioner, or a district justice.” Pa. R.Crim.P. 103. See: Viglione v. Pa. Department of Corrections, 781 A.2d 248, 251, n. 7 (Pa.Cmwlth.2001).
. The representation of an attorney as to the facts to which he or she believes a witness will testify is not evidence.