¶ 1 Thе Commonwealth appeals the order granting Patricia L. Moore’s second Petition For Writ Of Habeas Corpus and dismissing criminal charges against her with prejudice. We affirm.
¶ 2 The record discloses that on September
18, 1998,
Moore was charged with two counts of arson, insurance fraud and criminal conspiracy arising out of a fire at her residence on August 25, 1996. A preliminary hearing scheduled for Nоvember 25, 1998, was continued until disposition of Moore’s second Writ of Habeas Corpus. Hоwever, a hearing on the first Writ was held on January 12, 1998, wherein the Court heard testimony resulting in an opinion and order dated June 19, 1998, “that the Commonwealth ... failed to present independent evidence that the fire at issue was ‘incendiary in origin’ or by ‘human intervention’.” As a result, the statements of Moore’s daughter and son-in-law regarding her alleged confession were rendered inadmissible because the Commonwealth failed to establish the cоrpus delecti of the crimes charged.
Commonwealth v. Reyes,
¶ 3 The Commonwealth failed to appeal the June 19th order. 1 Rather, the Corn- *506 monwealth refiled criminal charges, but it neglected to allege the possession of any additional evidence to estаblish a prima facie case. In fact, at a hearing on December 9, 1998, (to address the second habeas corpus petition) the Commonwealth responded tо the Court’s inquiry of “What’s your new evidence?” in the following fashion; to-wit:
[Counsel for the Commonwеalth]: ... The new facts that you are asking about, Your Honor, is that Trooper Thompsоn has since conducted an investigation on the defendant’s financial status to determine motivation for setting of an arson fire to recover insurance money, so we believe we can prove that at this point.
Well, Your Honor, the other item I would mention is that [in the] ... habe-as [corpus] hearing, ... in the testimony we got out the kerosene heater was' knocked over, and everything else. H[owever, the Commonwealth’s attorney] never asked the magic ... question, “is the fire incendiary in origin, or caused by human intervеntion?” And that was the defect[.] * * * I believe we can ask the correct question this time аnd get the right answer. I mean, that was the underlying issue, whether or not the fire was caused by somеthing natural, as opposed to human.
¶ 4 We have no dispute with the Commonwealth’s authority to refile criminal charges where the defect is curable by admission of “new evidence” either not available or discoverable until after a preliminary heаring held to establish a prima facie case before a District Justice resulted in dismissal.
Commonwealth v. Waller,
¶ 5 We have reviewed the proposed “new evidenсe” (Moore’s financial incentive to start the fire) in the possession of the Commоnwealth, which was supposedly unavailable or unknown to the prosecution at thе December 9 th (second) habeas corpus hearing. We conclude that this type of evidence does not establish that the fire was “incendiary in origin” or by “human interventiоn”. Further, the Commonwealth argues in its “Brief In Opposition To Defendant’s Habeas Corpus Petition”:
... the Commonwealth need only refile the charges and have Trooper [Shaun] Jones state his opinion as to whether the fire was caused by human or natural intervеntion before the introduction of the Defendant’s admission ... would satisfy the corpus delecti rule.
We disagree.
¶ 6 First, the testimony of Trooper Shaun Jones was extant at the time of the (first) habеas corpus hearing. Thus, as in District Court cases, such evidence would not be “new” for habeas corpus purposes, which precludes the prosecution from a sеcond bite at the apple to convict Moore.
Commonwealth v. Hetherington,
¶ 7 Therefore, because no additional evidence exists in this case to prove a prima facie case, the rеarrest of Moore is invalid, and, consequently, the order granting the (second) Writ of Habeas Corpus and dismissal of all charges with prejudice was proper.
¶ 8 Order affirmed.
Notes
. The Commonwealth may appeal from an order discharging a defendant upon a Writ of
*506
Habeas Corpus.
Commonwealth v. Evans,