Commonwealth v. BernhardtCommonwealth v. Bernhardt
- Reporters:
- , ,
- Before:
- Johnson
These consolidated appeals are from separate orders denying Appellants’ petitions for a writ of habeas corpus. These appeals present for our review the question of whether a criminal defendant is entitled to a writ of habeas
On July 27, 1984, Appellant Bernhardt was arrested without a warrant by Philadelphia police and charged with robbery and related offenses. Following a preliminary arraignment, bail was set at $4,000.00. Bernhardt’s preliminary hearing was scheduled for August 2, 1984. When the complaining witness failed to appear, the Commonwealth requested and was granted a continuance. The preliminary hearing was continued until December 19, 1984. Bernhardt’s bail was also reduced to $3,000.00. Subsequently on August 22, 1984, appellant Bernhardt filed a petition for a writ of habeas corpus, wherein he requested to be discharged from custody pending his preliminary hearing. Following a hearing, the trial court denied the petition for writ of habeas corpus on September 10, 1984. A subsequent petition to reduce bail was denied by the court on October 1, 1984. On October 4, 1984, Bernhardt filed a timely appeal to this court from the order denying his petition for habeas relief. Appellant’s motion for release pending a disposition of his appeal was denied by this court per curiam on October 10, 1984. Later on October 12, 1984 Bernhardt was released on bail. Thereafter on December 19, 1984, when the complainant failed to appear for the preliminary hearing, the trial court granted the Commonwealth’s motion to withdraw the prosecution without prejudice.
Appellant Owens was arrested on March 20, 1985 and charged
inter alia,
with burglary and receiving stolen property. Bail was set at $25,000.00 and Owens’ preliminary hearing was scheduled for March 27, 1985. On that date, the Commonwealth requested and was granted a continuance for further preparation. The preliminary hearing was rescheduled for May 7, 1985. The record indicates that on April 1, 1985 a petition for reduction of bail/writ of habeas corpus was filed. A review of the record indicates that the document filed on April 1, 1985 was captioned petition for reduction of bail, with the language “writ of
Before addressing the merits of this appeal we must first determine whether the Superior Court has jurisdiction.
Generally, an immediate appeal will not lie from an order denying a pretrial petition for habeas corpus as such an order is interlocutory. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980). However, where exceptional circumstances exist, denial of a pretrial application for a writ of habeas corpus may be appealable. We note that in Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977) this court addressed the merits of an appeal challenging a pretrial petition for habeas relief without comment on whether such an order was interlocutory. In Commonwealth v. Rucco, 229 Pa.Super. 247, 324 A.2d 388 (1974), this court defined extraordinary circumstances as those “requiring the safeguarding of basic human rights.” We feel that the facts of these appeals constitute such exceptional circumstances. Commonwealth v. Donohue (Nos. 1304 and 1305 Philadelphia 1985; filed October 14, 1986).
Normally, the existence of an actual controversy is essential to appellate jurisdiction and, if an event occurs which renders it impossible to grant any relief, the issue is moot.
K.L.H. v. G.D.H.,
318 Pa.Super. 330, 464 A.2d 1368 (1983);
Commonwealth v. Smith,
336 Pa.Super. 636, 486 A.2d 445 (1984). However, exceptions to the mootness doctrine exist where (1) the question involved is capable of repetition but likely to evade review or; (2) the question
The Commonwealth submits that the issues raised do not fall within the exception to the case or controversy requirement as appellants could have sought review of their bail determinations pursuant to
Pretrial detentions, such as those in the instant matter, are by their nature temporary. As such it is unlikely that any challenge to pretrial detentions would be afforded full appellate review prior to a defendant’s release or conviction. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54, 63 (1975). Appellant Bernhardt was released on bail and the charges against him were ultimately withdrawn. Appellant Owens was bound over for trial after a preliminary hearing held subsequent to the filing of this appeal. Accordingly, the questions raised by these appeals are moot as to these individual defendants. However, there is a reasonable likelihood that other defendants will be subject to lengthy preliminary hearing delays. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).
In
Carros, supra,
the court was confronted with the question of whether a child committed to a child welfare agency by juvenile court as a deprived child has a right to treatment. While the child in that case had attained majori
Here we have a similar situation, where the action was not brought as a class action nor was testimony received with respect to the impact of Philadelphia County’s preliminary hearing scheduling practices on other defendants. Nevertheless, it is reasonable to assume that criminal defendants will continue to be brought before Philadelphia County courts and, its ability to schedule and hold prompt preliminary hearing will remain at issue. We note that at oral argument defendants submitted, and to its credit the Commonwealth did not vigorously deny, that the practice of preliminary hearing delays beyond 10 days was a recurring event in Philadelphia County.
Finally, we note that the issues presented involve deprivations of liberty, a matter of public importance. In Re S. O., 342 Pa.Super. 215, 492 A.2d 727 (1985) (while commitment periods in question have expired, live controversy still exists since involuntary commitment orders involve important liberty interests over which it behooves us to maintain appellate vigilance). In light of the foregoing analysis, we conclude that while the matters raised in these appeals are moot, the significant interests involved necessitate appellate review. We will therefore consider the merits of the issues presented.
We have chosen not to address the constitutional implications of the issues raised in this appeal as the issues involved are capable of resolution on a nonconstitutional basis.
Commonwealth v. Allsup,
481 Pa. 313, 392 A.2d
While appellants agree that a preliminary hearing may be continued for cause shown, they submit that no good reasons were given for the delay. With respect to Bernhardt, a delay of 145 days ensued before the final scheduling of his preliminary hearing at which time the Commonwealth withdrew the prosecution. The reason given for the continuances was the complainant’s failure to appear. In Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977) the court stated:
That a party is properly granted a continuance for the purpose of procuring the attendance of material witnesses cannot be disputed. However, an accused must still be insured as speedy a preliminary hearing as practical; the necessity for preventing prolonged custody pending a determination of probable cause remains, despite the existence of valid reasons for a continuance.
Id., 248 Pa.Superior Ct. at 238, 375 A.2d at 75.
Here, while the record indicates that the basis for the continuances with respect to Bernhardt was the complainant’s failure to appear, the record is silent as to why the complainant failed to appear and what efforts the Commonwealth made to secure his appearance. The record shows a Philadelphia address for the victim/complainant. We do not believe that a notation on the record that the complainant failed to appear, without more, is sufficient to demonstrate cause for the granting of a continuance in compliance with
The continuance delaying the preliminary hearing of appellant Owens is even more egregious, where the only reason given for the granting of the continuance was that the prosecution needed further preparation. This reason
The complaint filed against appellant Owens alleges that on March 20, 1985 he forcibly entered the victim’s apartment and removed a VCR, jewelry and coins without her consent. Owens was arrested on the same day and arraigned. At the preliminary hearing, the Commonwealth is required to make a prima facie case that a crime has been committed and that the accused is the one who committed the crime. Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1983). In seeking a continuance, the Commonwealth asserted that it needed more time for preparation. However, based upon our review of the complaint, we fail to see what further preparation was necessary for the prosecution to proceed at the preliminary hearing scheduled for March 27, 1985. Indeed, if the Commonwealth was unprepared to make even a prima facie case that a crime had been committed and that Owens committed it, we question the wisdom of filing the charges against Owens initially.
In
Wansley, supra
this court found that the defendant had been unlawfully deprived of his liberty and was entitled to a writ releasing him from custody where he was incarcerated for over two months pending his preliminary hearing. In
Commonwealth v. DeCosey,
246 Pa.Super. 412, 371 A.2d 905 (1977) the court found that a technical violation of
Under the circumstances of these cases we conclude that Bernhardt and Owens were unlawfully deprived of their liberty. We cannot, however, agree with the broad relief sought by appellants. Appellants not only seek a reversal of the orders denying their habeas petitions but also a prophylactic rule requiring the automatic granting of habe-as relief where the defendant has / been incarcerated for more than thirty (30) days pending his preliminary hearing. Under appellants’ approach a writ of habeas would be required regardless of whether the preliminary hearing was continued for cause shown. We do not, however, have the authority to create a rule as suggested by defendants.
Commonwealth v. Dugger,
506 Pa. 537, 543-544, 486 A.2d 382, 385 (1985). The rule making power resides in the Supreme Court.
We hold, rather, that where a preliminary hearing has not been held within the time required by
Orders reversed.