*1 Pennsylvania COMMONWEALTH WANSLEY, Appellant. Marvin Superior Pennsylvania. Court of
Argued April 1977. Decided June *2 John Woodcock,Jr., Assistant Public Defender, Hollidays- burg, appellant.
Donald E. Assistant District Speice, Attorney, Hollidays- submitted brief for burg, appellee. WATKINS,
Before President Judge, JACOBS, CERCONE, HOFFMAN, SPAETH, PRICE and JJ. JACOBS, Judge:
This is an from the order of the lower appeal court Martin for a denying appellant Wansley’s petition writ of below, habeas For the reasons corpus. we re- developed verse.
The facts of this case be pertinent may summarized as 28,1976, follows: On was arrested for certain May Substance, violations of The Controlled Device and Drug, date, Cosmetic Act. He was on that arraigned and the District Justice scheduled for June 1976;1 bail, $10,000, set at was not although posted. Appel- *3 lant was at this and was present preliminary hearing grant- ed a continuance until June 11 since his attorney was out of 11, the District On June the Justice further contin- country. ued he appellant’s hearing because had been preliminary advised that two of the Commonwealth’s witnesses would be in in a court session appearing Allegheny County. No date hearing was scheduled for a at that time. The subsequent Justice, indicates that the District on a date not testimony from the fixed, later received information District Attor- office to the effect that Commonwealth witness had ney’s been in an automobile accident. he injured Apparently, the hearing, continued without reschedul- again preliminary it, $7,500. bail was reduced to ing appellant’s Appel- Pennsylvania 1. Rule 140 of the Rules of Procedure Criminal reads pertinent part as follows: waived, “(f) preliminary hearing issuing is not When a the authori- ty shall: (1) day hearing preliminary fix a and hour for a which shall not be days preliminary arraign- less than three nor more than ten after shown, issuing authority ment unless extended for cause unless the upon request attorney fixes an or earlier date of the defendant his attorney complainant with the consent of the and the for the .” Commonwealth .
237 lant, however, remained incarcerated at the Blair County Prison. 1976,
On of Com- 23, appellant the Court July petitioned mon Blair a writ of corpus, Pleas of for habeas County the hearing fixing that a be set for bail. asking purpose 3, A held on at petition on this was which hearing August time to file an appellant granted petition leave amended Also, 3, to seek the discharge. August his on District Justice August scheduled appellant’s preliminary hearing 10, 1976, On August following hearing on the amended petition, the court below entered an order denying his his his discharge or release own This upon recognizance. appeal followed.
The of a function principal under law is to an individual’s Pennsylvania protect right against unlawful arrest and detention. v. Mullen, 460 Pa. A (1975). preliminary trial; hearing is not its purpose sole is to determine whether a facie case has been made prima against out Smith, accused. Commonwealth v. 232 A.2d 741, Pa. refused, allocatur xxxi Super, (1975). Rule 140(f)(1) of the Rules of Pennsylvania Criminal Procedure provides that the shall authority schedule issuing prelimi nary hearing days within three to ten of the preliminary This arraignment.2 Rule is designed prevent prolonged of an custody accused and undue delays disposition the case him. Commonwealth v. 470 Pa. against Hailey, effect, (1977). A.2d 1261 In it provides for speedy probable determination of cause. Commonwealth DeCo *4 sey, 412, 371 905 (1977). A.2d may
There be circumstances in which a preliminary hearing, although in scheduled with originally compliance Rule 140(f)(1), cannot be the date it. held on set for Recog- moving litigation 2. This burden of cannot be shifted onto the defend- Wade, Pa.Super. 454, ant. Commonwealth (1976). when, There we held that the District Justice erred instead setting preliminary hearing, response of for the date he awaited proceeding. from defense counsel before au- issuing the 142 authorizes Rule this nizing possibility, That a for cause shown. a continuance to thority grant of for the purpose a continuance granted is properly party be witnesses cannot of material attendance the procuring insured as must still be However, an accused disputed. the for necessity practical;3 as hearing a preliminary speedy a determination custody pending preventing prolonged valid rea- the existence of remains, despite cause probable sons for a continuance. a continu was
Here, granted the Commonwealth unavaila of its witnesses were because two ance on June 11 date did not set a the District Justice that ble. It appears word time, but awaited at that hearing for the continued as to an Attorney acceptable Assistant District from the the continuance is silent as to Moreover, the docket date. aby the sustained injuries because of granted subsequently incarcer however, was Appellant, witness.4 period. this entire during Prison the Blair County ated at that we supra, recognized v. DeCosey, In Commonwealth an accused to prejudices of the obvious is one incarceration preliminary of his scheduling in the delay from resulting not the that discharge in that case We held hearing. 140(f)(1) with Rule non-compliance remedy appropriate not on bail and could had been released the defendant since the four-day delay from resulting prejudice show any from the apart delay hearing of his scheduling original hearing that a continued Initially, reject appellant’s contention 3. we prelimi- days previously scheduled within ten must be scheduled We will not read nary hearing. as written. 142 must be read Rule that are not included. into it limitations time every authority issuing con- shall note provides that the Rule 142 docket, More- together the reasons therefor. with tinuance on his 1937, 1743, 15, P.L. over, suspend June the Act of Rule 142 does not part, pertinent that provides, 42 P.S. which § No. § granted sworn to and the reason is be unless no continuance shall requesting docket, party together the name of the with noted on the require- contrary, is no Although appellant argues there to the it. justify granting testimony of a continu- be taken ment that foregoing provisions were we note that ance. Nevertheless ignored case. in the instant *5 Here, however, itself. appellant’s incarceration extended while awaiting rescheduling his the element of supplies prejudice we found in Com- lacking monwealth v. DeCosey, supra.5 the circumstances,
Under we conclude that appellant was of his unlawfully deprived liberty entitled to and writ him releasing from custody.
Order reversed discharged.
SPAETH, J., files concurring opinion. VOORT, der J., VAN did not in the participate considera- tion or decision of this case.
SPAETH, Judge, concurring: concur, I but to wish reiterate my view that in a case which there has been something other than “substantial (as with Rule compliance” 140(f) case), present defendant not show need prejudice. Commonwealth v. De 412, 418, Cosey, A.2d 907 (1977) SPAETH, (Concurring Opinion J.). by Pennsylvania, Appellant, COMMONWEALTH of
v. Albert
John RANDLE.
Superior Court of Pennsylvania.
Argued March 29, 1977. Decided June noncompli- Although DeCosey, supra, involved reasoning equally applicable 140(f)(1), ance Rule we find its with here, discharge where, seeks his because situations as defendant scheduling hearing. delay in the of a continued