Com. v. Dibble, R.

J-S83036-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ROBERT WILLIAM DIBBLE, Appellee No. 594 WDA 2016 Appeal from the Order March 28, 2016 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000583-2015 BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ. DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2017 I respectfully dissent. After review, I conclude that the trial court erred in failing to rule on the petition for writ of habeas corpus. This error was compounded by the trial court sanctioning the Commonwealth by adding the “with prejudice” language to the order granting the nolle prosequi, effectively dismissing the charges against Dibble. While I do not condone the Commonwealth’s failure to obtain proper documentation from New York, I cannot agree that this amounted to prosecutorial misconduct warranting dismissal of the charges while there was a pending habeas corpus petition. Even if the trial court had granted Dibble’s habeas corpus petition, the Commonwealth would have been ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S83036-16 permitted to “refile the charges and present additional evidence at a new preliminary hearing in order to correct the evidentiary deficits that existed in the prosecution of the first complaint.” Commonwealth v. Claffey, 80 A.3d 780, 789-790 (Pa. Super. 2013) (citation omitted). Instead, the trial court’s extreme sanction gives Dibble a windfall and bars the Commonwealth from pursuing the charges. I cannot agree that this is an issue of form over substance, and I would reverse the order granting the nolle prosequi. -2-