Commonwealth v. Carbo

822 A.2d 60, 2003 Pa. Super. 145, 2003 Pa. Super. LEXIS 777
CourtSuperior Court of Pennsylvania
DecidedApril 11, 2003
StatusPublished
Cited by26 cases

This text of 822 A.2d 60 (Commonwealth v. Carbo) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Carbo, 822 A.2d 60, 2003 Pa. Super. 145, 2003 Pa. Super. LEXIS 777 (Pa. Ct. App. 2003).

Opinions

JOYCE, J.

¶ 1 The Commonwealth of Pennsylvania appeals from the March 1, 2001 order of the Court of Common Pleas of Montgomery County granting the petition for writ of habeas corpus filed by Appellee, Richard D. Carbo. Upon review, we reverse and remand for proceedings consistent with this Opinion. The relevant facts and procedural history are as follows.

¶2 On August 21, 2000, Appellee was arrested and charged with theft by extortion, receiving stolen property, threats and other improper influence in official and political matters, official oppression, and criminal attempt at theft by extortion.1 According to the affidavits of probable cause, each of these charges stemmed [62]*62from Appellee’s efforts to utilize his position as a retired Plymouth police officer, and as Chairman of the Plymouth Township Council, to extort a larger disability payment from the Plymouth Township Police Association (“Association”). The criminal complaint avers that Appellee routinely pressured the Association’s president, Lieutenant John Myrsiades, to pay him more than the standard $350.00 per month provided to other retired and disabled officers. When Lieutenant Myrsiades refused to increase his payments, Appellee allegedly threatened to use his position as Chairman of the Plymouth Township Council to sabotage the police department’s upcoming contract negotiations with the Township. In light of these threats, Lieutenant Myr-siades informed two other members of the Association, Detective Mark Lacy and Lieutenant Michael Haig, of Appellee’s demands. Thereafter, the Association increased Appellee’s disability payments to $525.00 per month.

¶ 3 Prior to filing the charges against Appellee, Detective Michael Gilbert of the Montgomery County Detective Bureau independently interviewed Lieutenant Myr-siades, Lieutenant Haig and Detective Lacy. Lieutenant Myrsiades informed Detective Gilbert that Appellee had threatened to sabotage the police contract if he did not receive additional disability benefits. Additionally, Lieutenant Haig and Detective Lacy stated that Lieutenant Myrsiades had informed them of Appel-lee’s threats.

¶ 4 A preliminary hearing was held on the charges on October 4, 2000. At this hearing, the Commonwealth sought to rely upon the testimony of Lieutenant Myr-siades. During the course of his testimony, however, Lieutenant Myrsiades renounced his previous statements to police and indicated that Appellee never made an improper request for increased compensation. As a result of this contradictory testimony, District Justice Walter F. Gad-zicki determined that the Commonwealth had faded to establish a prima facie case on the charges of theft by extortion, receiving stolen property and attempted theft by extortion. Nonetheless, District Justice Gadzicki held the improper influence and official oppression charges for court.2

¶ 5 On November 1, 2000, Appellee filed a petition for writ of habeas corpus on these remaining charges, and a hearing was held at the Court of Common Pleas of Montgomery County on November 20, 2000. At the conclusion of this hearing, the Commonwealth withdrew its opposition to Appellee’s petition, and the Honorable William W. Vogel dismissed the remaining charges against Appellee on December 21, 2000.

¶ 6 On January 16, 2001, the Commonwealth refiled the original charges against Appellee. In doing so, the Commonwealth submitted the identical criminal complaint and affidavit of probable cause that it had filed on August 21, 2000. Before a second preliminary hearing was scheduled on these charges, Appellee filed his second petition for writ of habeas corpus. In support of his petition, Appellee asserted that the Commonwealth could not refile charges against him absent any new evidence. The Commonwealth filed a response to this petition, in which it asserted that it intended to call additional witnesses to establish its case, including Lieutenant Haig and Detective Lacy.

[63]*63¶ 7 On February 2, 2001, the Honorable Maurino J. Rossanese Jr. held a hearing on Appellee’s habeas corpus petition. At the hearing, Appellee’s counsel argued that our Court’s decision in Commonwealth v. Moore, 749 A.2d 505 (Pa.Super.2000) precluded the Commonwealth from refiling charges in the absence of new evidence that was not available or discoverable before the first preliminary hearing. Additionally, Appellee argued that the testimony of Detective Lacy and Lieutenant Haig did not constitute newly discovered evidence because the Commonwealth had interviewed Detective Lacy and Lieutenant Haig prior to the first preliminary hearing. After reviewing our Court’s decision in Moore, the trial court agreed with Appellee and dismissed the charges with prejudice on March 1, 2001. See Findings of Fact and Conclusions of Law, 3/1/01 at 5. This timely appeal followed.

¶8 In this appeal, the Commonwealth argues that the trial court erred in granting Appellee’s habeas corpus petition. Specifically, the Commonwealth contends that Rule 544 of the Pennsylvania Rules of Criminal Procedure (formerly Pa. R.Crim.P. 143) and prevailing case law permits the Commonwealth to refile criminal charges as long as this action does not prejudice the defendant. As our Court’s decision in Moore appears to create an additional requirement, that the Commonwealth must introduce “new evidence” that was previously unavailable or undiscovera-ble in order to refile charges, the Commonwealth maintains that Moore conflicts with existing law and must be overruled.

¶ 9 When reviewing a trial court’s decision to grant a habeas corpus petition, we will not reverse the trial court’s decision absent a manifest abuse of discretion. Commonwealth v. Kohlie, 2002 PA Super 325, ¶ 9, 811 A.2d 1010. In order to constitute an abuse of discretion, the record

must disclose that the trial court exercised manifestly unreasonable judgment or based its decision on ill will, bias or prejudice. Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super.2002). Furthermore, our scope of review is limited to determining whether the Commonwealth has established a prima facie case. Kohlie, 2002 PA Super 325 at ¶9, 811 A.2d 1010. “In criminal matters, a prima facie case is that measure of evidence which, if accepted as true, would justify the conclusion that the defendant committed the offense charged.” Id. With these standards in mind, we now turn to our discussion of the Commonwealth’s sole issue, namely, whether the Commonwealth must possess newly discovered evidence in order to reinstate dismissed charges. Commonwealth’s Brief, at 3. In addressing this issue, we will also determine whether our decision in Moore conflicts with existing law and must be overruled.

¶ 10 Preliminarily, we note that the instant appeal stems from the Commonwealth’s attempt to refile five criminal charges against Appellee in the Court of Common Pleas of Montgomery County. The Commonwealth attempted to refile three of these charges, i.e. theft by extortion, receiving stolen property and attempted theft by extortion, after their dismissal at a preliminary hearing. The Commonwealth sought to refile the remaining two charges, i.e. improper influence and official oppression, after their dismissal at the first habeas corpus hearing.

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Bluebook (online)
822 A.2d 60, 2003 Pa. Super. 145, 2003 Pa. Super. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-carbo-pasuperct-2003.