*2 NIX, C.J., LARSEN, Before FLAHERTY, and McDERMOTT, ZAPPALA, STOUT, PAPADAKOS and JJ.
OPINION ANNOUNCING THE JUDGMENT THE
OF COURT LARSEN, Justice.
The issue presented by appeal this presi- whether the dent of a court of common pleas may order the temporary assignment of a to justice district serve anoth- magisterial pursuant er district 23(b),1 Pa.R.Crim.P. Rule replace justice district dismissed who has criminal charges against an accused and testified who has that he dismiss charges again will upon the rearrest of the if presented accused the facts at the second preliminary hearing are if the same or a witness testifies different facts.
Apрellant, Kline, the Henry Mayor Waltnutport, Penn- sylvania, allegedly broke into the of the Borough offices Manager on illegal March an made search Appellant thereof. also allegedly threatened to fire Patrol- man Peter an Wayda, alleged G. рarticipant- fellow break-in, if Wayda investigating talked to those the break- Appellant charged in. was arrested and with criminal tres- (18 3503); pass (18 Pa.C.S.A. official oppression Pa.C.S.A. *3 5301); (18 903); criminal conspiracy Pa.C.S.A. threats § § and other in improper (18 influence official mаtters Pa.C. 4702); (18 S.A. intimidation of witnesses Pa.C.S.A. § 4952); obstructing and of administration law or other (18 5101). government functions Pa.C.S.A. § appellant’s At preliminary hearing, charges all except criminal trespass and criminal conspiracy were dismissed. The Commonwealth subsequently application filed an for change of venue in the Court of Common Pleas of North- ampton County, original order to refile all of charges a different justice. before district The Court of Common Pleas of Northampton County granted the Commonwealth’s hearing at appliсation following only which the testimony presented was that of district before justice whom the had preliminary hearing been held. The district justice that charges again testified he would dismiss the if the 23(b) provides part: Pa.R.Crim.P. Rule in relevant president may assign issuing The temporarily authority any magisterial magisterial of district serve another district assignment impar- whenever such is needed to insure fair and ... proceedings, tial same testimony were presented and he question would credibility of any witness who testified to different facts.2
Appellant filed an аppeal to Superior Court from the order of the Court of Common Pleas granting the Common- application wealth’s for change of venue. While appellant’s appeal Superior Court was pending, the Commonwealth nolle prossed the remаining two charges against appellant in anticipation refiling of all of the original charges. Supe- reversed, rior Court ruling that the application for change of venue was untimely filed the application was made after the preliminary hearing completed was in viola- tion of Pa.R.Crim.P. Rule 25 which requires that an objec- tion to venue must be made before completion of the preliminary Thereafter, hearing. the Commonwealth filed a motion in pleas common court requesting the temporary assignment оf issuing authority, and the matter was sub- mitted to the president judge on the basis of the transcript of the earlier hearing on the application of venue.
*4 The president judge granted the motion for the tempo- rary assignment issuing authority, stating that “it was testified, justice 2. The district part, in relevant as follows: Q [Attorney Spengler] you hearing If again were that case over charges, your with the same would decision to bind over two charges, trespass conspiracy, criminal and to not bind over the oppression precharges officаl having [sic] and the to do with the witnesses, your intimidation would decision be the same? A With the same facts? Q Yes. A Yes. Hearing Transcript that A I would the facts were perhaps give me take rendering your decision? A I would take the the law and then Q ed the next Q [Attorney You would take thе point, into consideration the I would say yes, except Shmookler] time, you different from the same [******] at 4 some consideration on the say. render facts, yes, exactly. (July facts before would take those into consideration And if there were that we credibility 31, a decision based 1985). you, get person of that back to the same consider those different facts testifying, credibility. particular upon those facts? facts, that witness at thing. I would present- would, apply in If necessary to insure fair and impartial proceedings both to the Commonwealth and to the defendant to have the mat- ters heard before a different magistrate.” Memorandum of the opinion 26, Court at 1 (Aug. 1986). Appellant filed a appeal second to Superior Court, and Superior Court af- firmed, 369 Pa.Super. finding that the president judge had not abused his discretion in granting the Commonwealth’s motion. granted We petition the dlowance of appeal filed by appellant 1) determine whether Superior Court was precluded from affirming the grant of the motion for temporary assignment of issuing “whеre authority Superior the Court previously ruled that the Commonwealth had waived its objections to venue (i.e., same case” res judicata), 3; Brief for Appellant at 2) whether there was evidence of record to warrant temporary assignment of issuing authority tо insure fair and impartial proceedings.3
As noted by Superior Court, a venue is not the same as a temporary assignment of issuing authority. A change of venue is ordinarily required because of a defendant’s inability obtain a fair and impartial jury in a county which the incident giving rise to the criminal charges occurred. When a temporary assignment of issu ing is authority requested, the issue is not the impartiality of the whole from community which jurors are selected. Rather, the issue is involved the impartiality of one person, the district justice of the district whеre alleged offense occurred. Report See of the Criminal Procedure Rules Committee, 13 (1983). Pa.Bull. 1766-67 Therefore, Superior Court’s ruling with regard to the appeal from the order granting the Commonwealth’s application for change of venue does nоt bind that court on appeal from the order president of the judge granting the Commonwealth’s motion for temporary assignment of issuing authority. argues
3. The president Commonwealth order of the granting the temporary assignment Commonwealth’s motion for the issuing authority interlоcutory appealable. and thus is not We agree, but we public importance find that the matter is of sufficient plenary jurisdiction. warrant the exercise of our 42 Pa.C.S.A. *5 respect With to the second issue raised by appellant, 23(b) provides Rule that the president judge “may” tempo rarily assign an issuing authority magis serve another terial district in order to insure fair and impartial proceed ings, and only upon an abuse of discretion will an appellate court reverse. Where there showing is no of on partiality the part of the issuing authority who sits in the magisterial in lies, district which venue the president judge abuses his or her discretion by granting motion for the temporary assignment of issuing in authority serve that district.
In the action, instant the only presented evidence support the Commonwealth’s motion for the temporary assignment of issuing authority was the testimony of the district justice before whom the preliminary hearing had been held. Although he stated that he would dismiss the charges against appellant again if presented with the same facts, the Commonwealth did not show that the district justiсe would do so as a matter of bias or in spite of the prima existence of a facie case against appellant. Because there no record, was evidence of therefore, to support the request Commonwealth’s for the temporary assignment of issuing authority “to insure fair and impartial proceedings,” the president judge abused his discretion granting the Commonwealth’s motion for temporary assignment of issu- ing authority.
Accordingly, we reverse the order of Superior Court which affirmed the order of the Court of Common Pleas of Northampton County granting the motion for temporary assignment issuing authority.
NIX, C.J., ZAPPALA, JJ., files concurring opinions.
PAPADAKOS, J., files a dissenting opinion in which McDermott, j., joins.
NIX, Justice, Chief concurring.
I concur
in the
only
result reached by the majority.
However, I fail to perceive any legitimate reason for this
complaint
tо have received such an inordinate amount of
judicial attention. We have
held
repeatedly
that the dismis
*6
sal of charges
aby magistrate is not a binding final order.
Commonwealth v. Hetherington,
17,
460 Pa.
616
McNair’s
Pa.
ZAPPALA, Justice, concurring.
I concur only the result because the majority inadvert- ently misapplied Pa.R.Crim.P. 23.
The Rule provides the following: Rule 23. Continuous Availability and Temporary Assign-
ment of Issuing Authorities.
(a) president The judge of each judicial district shall be responsible for insuring the availability at all times within judicial his district of at least one issuing authority. (b) The president judge may assign temporarily issuing authority of any magisterial district to serve another magisterial district whenever such assignmеnt needed to satisfy the requirements of (a), paragraph insure and impartial proceedings, or otherwise for fair the efficient justice. administration of One or more issu- ing authorities may be so assigned to serve one or more magisterial districts.
(c) Whenever a temporary assignment is made under this Rule, notice of such assignment shall be filed with the clerk of the court of common pleas where it shall be police available for agencies and other interested persons. (d) A motion may be filed requesting a temporary assignment (b) under paragraph on ground that the assignment is needed to insure fair impartial proceed- * Northampton County, In justices there are fourteen district with one vacancy present at the time.
ings. Reasonable notice and opportunity respond shall provided be to the parties.
(emphasis added).
As the note indicates, to Pa.R.Crim.P. 23 as- temporary signment in this situation is intended to might cover what otherwise be referred to as “change venue” at justice rule, district language level. The of this enacted to insure fair and impartiаl proceedings, mandates that rule applied be as a preliminary matter. This comports 25(a), with Pa.R.Crim.P. provides which that “objections to venue magisterial between districts shall be raised in the Court of Common Pleas ... before completion pre- liminary hearing ... or such objections shall be deemed to have been waived.”
In the case sub judice, the Commonwealth did not file a pursuant motion to Pa.R.Crim.P. 23 until after appellant’s preliminary hearing. Other than to avoid an undesirable result, the Commonwealth offers no for requesting basis temporary assignment. being There no evidence of record support the Commonwealth’s request for as- temporary signment of issuing authority to insure a fair and impartial proceeding, the president judge abused his discretion granting the Commonwealth’s motion.
Furthermore, the Commonwealth failed initially to avail itself of the opportunity to remove all as to doubt the fairness and of the impartiality proceeding by petitioning the Court of Common Pleas to have a sit as the See committing magistrate. 42 Pa.C.S. reasons,
For I these concur in the majority’s disposition appeal. of this
PAPADAKOS, Justice, dissenting.
In Commonwealth v.
Stoltzfus,
462 Pa.
873
(1975),
therein,
and cases cited
we determined that
“grant
or refusal of a
of
is
venue within the sound
of the trial court.” The “test
is
discretion
whether
discretion or committed an error
court аbused its
which
Commonwealth v.
of the case.”
controlled the outcome
Swanson,
(1968).
More for concern importantly my present is the fact that (Comment) impose Pa.R.Crim.P. “is intended to the re- on the spоnsibility president judge.” I read that to mean lodged have in those supervisory we officers the role in such matters as arise in their I jurisdictions. see no reason that judgment get distrust or involved in an endless game second-guessing those decisions. Presumably we delegated that power very problem. avoid this Nor is this a “judge-shopping” case the same reasons. “Fo- occurs rules rum-shopping” legal when themselves al- to search out most parties low favorable courts without any shop check on their freedom to around. That is not thе *8 case here under Rule 23. The to move a case or ability change not judges shop- rests with the court and with the per. change It is the court itself which decides whether a of court or a judges will be allowed: precisely why gave president judges supervisory we role in the first instance.
I, therefore, dissent and affirm the decision of the would Superior Court.
McDERMOTT, J., dissenting this joins opinion.