Commonwealth v. Brabham

309 A.2d 824, 225 Pa. Super. 331, 1973 Pa. Super. LEXIS 1531

• Court: Superior Court of Pennsylvania
• Decided: September 19, 1973
• Docket: Appeals, 1 and 71
• Status: Published

Opinions

Opinion by

Hoffman, J.,

Appellant contends that his indictment by a grand jury should have been quashed, as he was denied his right to a preliminary hearing.

On November 23, 1970, a robbery took place at the Penbrook Manor Cleaners in Harrisburg. A clerk employed by Penbrook identified the robber as the appellant. Appellant was subsequently located at the Lancaster County Prison where he was an inmate on an unrelated offense; a detainer was lodged against him. On February 26, 1971, the Grand Jury returned an indictment charging appellant with aggravated robbery. A Motion To Quash the bill of indictment, asserting lack of a preliminary hearing, was dismissed. Appellant was tried by a judge and jury on April 21, 1971, and found guilty as charged. Post-trial motions were denied, and appellant was sentenced to pay a fine of $50.00 and undergo imprisonment for a period of not less than seven and one-half years nor more than fifteen years. This appeal followed.

Preliminary hearings were unknown to the early common law. This mode of instituting a criminal proceeding is a creature of statute. Curiously, a preliminary hearing was originally used not as a means of protecting individuals arrested for a crime, hut rather as an instrument to restrict the indiscriminate release of such persons. 3 Henry VII, Ch. Ill; 1 and 2 Philip and Mary, Ch. Ill; 2 and 3 Philip and Mary, Ch. X. See generally, Commonwealth v. O’Brien, 181 Pa. Superior Ct. 382, 124 A. 2d 666 (1956). These statutes were incorporated into the common law of this Commonwealth. See 3 Biimey’s Report 616, 620 (1807).

Until 1915, the Pennsylvania Legislature passed no act dealing with preliminary hearings, though the case law reflected a judicial recognition of preliminary hearings as a “right” of every individual, save three exceptions.¹ By the Act of May 14, 1915, P. L. 499, 42 P.S. §1080, the Legislature provided that “upon a preliminary hearing before a magistrate for the purpose of determining whether a person charged with any crime or misdemeanor against the laws, except murder, manslaughter, arson, rape, mayhem, sodomy, buggery, robbery, or burglary, ought to be committed for trial, the person accused, and all persons on behalf of the person accused, shall be heard if the person accused shall so demand.”²

Our Supreme Court construed 42 P.S. §1080, supra, in Commonwealth v. Hoffman, 396 Pa. 491, 152 A. 2d 726 (1959), holding that a defendant charged with indirect criminal contempt was entitled to a preliminary hearing. Chief Justice Jones delivered the majority opinion stating pp. 497-498: “The petitioners were entitled to a preliminary hearing to which they had a positive legal right. ... In a case where the defendants are arrested for an indirect criminal contempt, it is clear that the Act of 1915, supra, requires a preliminary hearing, if the defendants so demand, at which they are entitled to testify if they choose so to do. . . . While there may be certain limited exceptions to this generally recognized procedure in criminal cases, it cannot reasonably be contended that any such exemption is applicable here.

“Since a preliminary hearing was denied Philip and Hoffman by the committing magistrate on the charge of criminal contempt, their commitment was void and of no legal effect. Consequently, the orders of the court below in connection therewith must be deemed vacated, the warrants quashed. ...”

In order to remove any doubt as to the mandatory position of the preliminary hearing in our criminal process, our Supreme Court promulgated comprehensive rules of criminal procedure stating a firm and unequivocal judicial policy on the subject.

Rule 102 of the Rules of Criminal Procedure sets forth the methods by which a criminal proceeding may be instituted. Rules 116 and 118 require that after arrest the defendant be preliminarily arraigned without unnecessary delay. At this preliminary arraignment, the issuing authority, according to Rule 119, shall inform the defendant:

“(1) Of his right to secure counsel of his choice and his right to assigned counsel in accordance with Rule 318;

“(2) Of Ms right to have a preliminary hearing or, except as provided in these rules, to waive it; . . . (f) When a preliminary hearing is not waived, the issuing authority shall:

“(1) Fix a day and hour for a preliminary hearing. . . .” (Emphasis added).

Rule 119, which was effective at the time of the alleged robbery, mates it mandatory upon the issuing authority to provide defendant with a preliminary hearing, unless he has waived that right. Rule 224 establishes the procedure to follow in those limited situations where a preliminary hearing is not required: “When the attorney for the Commonwealth certifies to the Court of Common Pleas that a preliminary hearing cannot be held for a defendant because the defendant cannot be found in the Commonwealth or that the statute of limitations will run prior to the time when a preliminary hearing can be held or that a preliminary hearing cannot be held for other good cause, the court may grant leave to the Attorney for the Commonwealth to present a bill of indictment to the grand jury without a preliminary hearing.” The editorial comment to the Rule provides: “An accused in Pennsylvania usually has the right to a preliminary hearing before he may be indicted by the grand jury. See, Commonwealth v. Hoffman, 396 Pa. 491, 152 A. 2d 726 (1959). There are situations in which preliminary hearing is not required, »

An examination of the case law reveals that in the instant case none of the recognized exceptions to a requirement for a preliminary hearing exist. Furthermore, the record does not disclose any purported waiver of that right. Appellant was, at the time of the indictment before the grand jury, in jail in another county. There was no opportunity of escape nor is there any other indication of “exigent circumstances” to justify that extraordinary departure from what is generally viewed “as the norm”. Commonwealth v. MoCloskey, 443 Pa. 117, 227 A. 2d 764 (1971). As our Supreme Court stated in Commonwealth v. Green, supra at 540: “It is plain that the exigency of this case did not require, or even appear to require this extraordinary exercise of power, on the part of the district attorney. There was no emergency, no demand of haste, no effort to escape, not even any appearance of an escape; there was no public good to be subserved, indeed there was absolutely nothing to call for this unusual method of procedure, and it is not pretended there was.” In the instant case, the district attorney had placed a detainer on the appellant, preventing the appellant from fleeing after his release in avoidance of criminal prosecution for the alleged robbery. Furthermore, the district attorney had it in his power to remove appellant from the Lancaster Prison to Harrisburg by virtue of 12 P.S. §1887, where a preliminary hearing could have been held without undue delay.

Commonwealth relies on two opinions from this Court which held that a prisoner incarcerated in another county could be considered a “fugitive” so as to permit the district attorney to indict by way of grand jury and thereby obviate the need for a preliminary hearing. Commonwealth v. Czarnecki, 221 Pa. Superior Ct. 303, 304, 292 A. 2d 422 (1972) ; Commonwealth v. O’Brien, supra.

Commonwealth argues that O’Brien held that the prisoner is not denied any substantive rights by denial of a preliminary hearing as the primary purpose of such a hearing is “to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.” 181 Pa. Superior Ct. at 396. As appellant was already incarcerated for another offense, Commonwealth argues, he has not been denied his liberty as a result of the charges brought against him by way of an indicting grand jury.

The argument advanced by the Commonwealth ignores other basic purposes of such a hearing. In Coleman v. Alabama, 399 U.S. 1, 9 (1970), the United States Supreme Court, in holding that a defendant had a right to counsel at a preliminary hearing as it was a “critical stage” in the criminal process, declared most emphatically : “Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s shilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.”

Commonwealth argues that Coleman is not controlling on the instant matter as our Supreme Court stated that “Coleman did not decide that a preliminary hearing was constitutionally required.” Commonwealth v. McCloskey, supra at 139-140. This may be true. The fact that Coleman^ did not decide the constitutional imperative of a preliminary hearing does not mean that this Commonwealth does not require such a proceeding. In Commonwealth v. O’Brien, supra, while holding that a prisoner incarcerated in another county need not be afforded a preliminary hearing, this Court recognized at p. 387: “Not all rights, however, are constitutional rights and the question remains whether defendant has a statutory or common law right to be present at such a hearing.”

It is our belief that O’Brien erroneously stated the purposes behind the existence of preliminary hearings in our process. The purposes enunciated in Coleman v. Alabama, supra, requiring counsel at a preliminary hearing, far exceed the limited purpose stated in O’Brien. We recognize that a defendant who absents himself from the jurisdiction of our courts as a “fugitive from justice” should not and is not to be afforded the “right” of a preliminary hearing, as his actions should be viewed as a waiver. See, Commonwealth v. Bunter, 445 Pa. 413, 282 A. 2d 705 (1971). The mere fact that appellant was an inmate in a prison in another county does not, however, make him a “fugitive” from the offense being prosecuted in Harrisburg. The policy considerations which go into denying a “fugitive” the “right” of a preliminary hearing should not be extended to deny appellant. The clear meaning of our Rules of Criminal Procedure mandates that a person in appellant’s position is entitled to a preliminary hearing as a matter or right.

By our decision, we recognize that Commonwealth v. O’Brien and Commonwealth v. Czarnecki, supra, must be overruled.

The judgment of sentence is reversed, appellant’s conviction vacated, his indictment quashed, and appellant discharged.

1 First, a district attorney or attorney general could submit, a bill to a grand jury without previous binding over or commitment of the accused. Such an exercise of official authority is only justified when the accused has fled or is about to flee the jurisdiction, and great haste is necessary. The second exception is when an indicting grand jury makes a presentment based on personal knowledge of the jurors without any bill of indictment having been laid before them. The third exception is a prosecutor’s submission of an investigating grand jury presentment to an indicting grand jury with leave of court. Commonwealth v. Green, 126 Pa. 531, 17 A. 878 (1889) ; Case of Lloyd and Carpenter, 5 Pa. L.J. 55, 3 Clark 188 (1845).

2 Rule 119 of the Rules of Criminal Procedure suspends 42 P.S. §1080.