Commonwealth v. DeCosey

371 A.2d 905, 246 Pa. Super. 412, 1977 Pa. Super. LEXIS 1637

• Court: Superior Court of Pennsylvania
• Decided: March 31, 1977
• Docket: 1547
• Status: Published

Opinions

JACOBS, Judge:

This is an appeal from the order of the court below quashing the information and discharging defendant, Albert DeCosey, for the reasons hereinafter set forth. We reverse.

A warrant for defendant’s arrest was issued on June 11, 1975, following an investigation conducted by undercover agents of the Pennsylvania Bureau of Drug Control. All attempts to locate defendant were unsuccessful, and defendant was neither served with the warrant nor arrested. However, on September 9, 1975, he appeared with counsel at the district justice’s office. Defendant was arraigned and he posted bail; a preliminary hearing was set by the district justice for September 23, 1975. Defendant appeared at this preliminary hearing, but requested a continuance in order to retain the services of an attorney. After several delays, a preliminary hearing was finally held on December 30, 1975. Prior to this hearing, defendant moved to dismiss the action since the preliminary hearing was not initially scheduled within three to ten days from the date of his arraignment. This motion, however, was denied. At the conclusion of the testimony, it was held that a prima facie case had been established, and defendant was bound over for court. Defendant thereafter filed an application to quash the information on January 6, 1976. Concluding that the clear directive of Rule 140(f) (1) of the Rules of Criminal Procedure had not been followed, President Judge GREEVY entered an order on April 12, 1976, quashing the information and discharging defendant. The Commonwealth’s appeal from that order followed.

Rule 140 of the Pennsylvania Rules of Criminal Procedure reads in pertinent part as follows:

“(f) When a preliminary hearing is not waived, the issuing authority shall:

(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth . . .”

It is obvious that Rule 140(f) (1) was not complied with in the instant case; the sole question for our consideration is whether defendant’s discharge was mandated.

Unlike Rule 1100, which expressly compels dismissal of the charges if its time limitations are not met, Rule 140(f) (1) does not provide a remedy for the failure to schedule a preliminary hearing within three to ten days of the preliminary arraignment. Rule 1100 was adopted by our Supreme Court pursuant to its supervisory powers, and is intended to provide an objective standard for the protection of a defendant’s right to a speedy trial. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Hamilton, 449 , 297 A.2d 127 (1972). Dismissal of the charges is the only possible remedy for a denial of that constitutional right.

However, there is neither a federal nor state constitutional right to a preliminary hearing. See Commonwealth v. Mayberry, 459 Pa. 91, 827 A.2d 86 (1974) and cases therein cited. A preliminary hearing is not a trial; its purpose is solely to determine whether a prima facie case has been made out against the accused. Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741, allocatur refused, 232 Pa.Super. xxxi (1975). In effect, Rule 140(f)(1) provides for a speedy determination of probable cause. We cannot conclude that the language of this Rule requires an automatic discharge of an accused if his preliminary hearing is not scheduled within ten days of the preliminary arraignment.

One of the obvious prejudices to an accused resulting from a delay in the scheduling of a preliminary hearing is his incarceration. In fact, the hearing’s principal function is to protect an accused’s right against an unlawful detention. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). Here, however, the defendant was released on bond, and only when the preliminary hearing was finally held did he object to its untimeliness. Moreover, no prejudice has been shown to have resulted from the district justice’s error in scheduling defendant’s hearing apart from the four day delay itself. His defense was in no way impaired. Despite the technical violation of Rule 140(f) (1), we do not believe that defendant’s discharge was mandated.

Order reversed and case remanded for trial.

SPAETH, J., files a concurring opinion. HOFFMAN, J., concurs in the result.