J-A08005-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CHRISTOPHER VINCENT DEMANNO, :
:
Appellee : No. 1425 MDA 2014
Appeal from the Order Entered August 7, 2014,
in the Court of Common Pleas of Clinton County,
Criminal Division at No(s): CP-18-MD-0000123-2014
BEFORE: S HOGAN, WECHT, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MAY 13, 2015
I respectfully dissent.
I acknowledge that this Court is not required to accept the
Commonwealth’s certification that the trial court’s order will terminate or
substantially handicap the prosecution. See, e.g., Commonwealth v.
Wright, 99 A.3d 565, 568 n.1 (Pa. Super. 2014) (“While the
Commonwealth's good faith certification under Rule 311(d) is entitled to
some deference, this Court need not accept its good faith certification in
every case.”). However, I believe that we should accept the
Commonwealth’s certification in this case and conclude that this Court has
jurisdiction over the appeal pursuant to Pa.R.A.P. 311(d).
The MDJ dismissed the charges against Appellee, concluding that the
Commonwealth failed to present a prima facie case against him. In my
* Retired Senior Judge assigned to the Superior Court.
J-A08005-15
view, it is more than reasonable to believe that, if that MDJ is presented with
the same evidence and the same charges at a second preliminary hearing,
the MDJ again will dismiss the charges against Appellee. Thus, the trial
court’s order denying the Commonwealth’s motion for the temporary
assignment of an issuing authority has the practical effect of terminating the
Commonwealth’s case against Appellee. For these reasons, I am satisfied
that this Court has jurisdiction to reach the merits of the Commonwealth’s
appeal. Cf. Commonwealth v. Wright, 910 A.2d 648, 653-55 (Pa. 2006)
(plurality opinion) (holding that the Commonwealth could appeal pursuant to
Pa.R.A.P. 311(d) from an order denying the Commonwealth’s motion to
recuse).
As to the merits of the Commonwealth’s claims, I agree with the
Commonwealth that the trial court utilized an improper standard in denying
the motion for the temporary assignment of an issuing authority. The trial
court denied the Commonwealth’s motion based upon a determination that
the Commonwealth failed to present any evidence that the MDJ was partial
or biased. In my view, the court should have examined whether the
Commonwealth made a good faith allegation that the MDJ erred by
dismissing Appellee’s charges. See Commonwealth v. Shoop, 617 A.2d
351, 353 (Pa. Super. 1992) (“[W]here the Commonwealth in good faith
alleges improper dismissal by a district justice, it must have the opportunity
to bring the re-arrest before another district justice.”); see also
-2-
J-A08005-15
Pa.R.Crim.P. 544 Comment (“Pursuant to paragraph (A), in the usual case,
charges will be reinstituted by filing a complaint with the issuing authority
who dismissed or permitted the withdrawal of the charges. However, there
may be cases in which the attorney for the Commonwealth determines that
a different issuing authority should conduct the preliminary hearing, such as
when an error of law is made by the issuing authority in finding that
the Commonwealth did not sustain its burden to establish a prima
facie case. Paragraph (B) requires that, in these cases, the attorney for the
Commonwealth must file a petition with the court of common pleas
requesting that the president judge, or a judge designated by the president
judge, assign a different issuing authority to conduct the preliminary
hearing.”) (emphasis added).
After a review of the record, I conclude that the Commonwealth did
make a good faith allegation that the MDJ erred by finding that the
Commonwealth failed to establish a prima facie case against Appellee.
Accordingly, I would reverse the trial court’s order.
-3-
Com. v. Demanno, C.
Combined Opinion