Com. v. Allem

• Decision Date: 13 October 1987
• Docket Number: No. 815,815
• Citation: 532 A.2d 845,367 Pa.Super. 173
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth ALLEM, Appellant. Phila. 1986.
• Court: Pennsylvania Superior Court

Page 845

532 A.2d 845

367 Pa.Super. 173

COMMONWEALTH of Pennsylvania v. Kenneth ALLEM, Appellant.

No. 815 Phila. 1986.

Superior Court of Pennsylvania.

Argued Nov. 5, 1986.

Filed Oct. 13, 1987.

Michael Yanoff, Lansdale, for appellant.

Andrew Demarest, Asst. Dist. Atty., Doylestown, for Com.

Before McEWEN, DEL SOLE and KELLY, JJ.

KELLY, Judge:

This case involves an appeal from an order granting the Commonwealth's motion for temporary assignment of issuing authority to a judge of the court of common pleas. We affirm.

On January 10, 1986, a complaint was filed with District Justice J. Robert Hunsicker charging appellant with corruption of minors (18 Pa.C.S.A. § 6301), indecent assault (18 Pa.C.S.A. § 3126), and indecent exposure (18 Pa.C.S.A. § 3127) relating to events occurring from the summer of 1983 until February 7, 1984. The district justice found probable cause and authorized the issuance of a warrant the same day. A preliminary hearing was scheduled for February 13, 1986. However, neither the affiant, Detective Stephen Battershell, nor any of the Commonwealth's witnesses appeared for the hearing. District Justice Hunsicker called the detective to determine why he had not appeared. Detective Battershell explained that he had confused the dates of the preliminary hearing and asked that he be granted a continuance. District Magistrate Hunsicker, however, dismissed the complaint and discharged the appellant.

On February 26, 1986, Detective Battershell refiled the criminal complaint against appellant. District Justice Hunsicker again found probable cause for issuance of process and a summons was issued that day. However, before a preliminary hearing could be held, the Commonwealth filed a motion to have a judge of the Court of Common Pleas temporarily assigned as issuing authority ¹ to conduct the preliminary hearing in the instant case. Appellant was served with the written motion and filed a written answer. An informal hearing on the motion was held on March 13, 1986, during which oral argument was presented by counsel. The motion was granted by order of the Honorable Isaac S. Garb, President Judge, on March 17, 1986. Notice of appeal was filed on March 21, 1986.

On April 9, 1986, President Judge Garb filed a Memorandum Opinion in support of the order which explained:

At the hearing on the 'change of venue' application, it became apparent that there was a disagreement between the Commonwealth and the defendant as to the basis for the discharge by the District Justice. The Commonwealth contended that the discharge was effected based upon the application of the two year statute of limitations. The defense contended that the discharge was based upon the failure of the Commonwealth to present any evidence. Conceivably, although we cannot be sure, the reason for the discharge might have some effect on the question of whether the Commonwealth can refile the complaint and rearrest the defendant. By the same token, there may very well be various circumstances why the statute of limitations may not have run merely by the lapse of two years from the date of the alleged offense. See the Act of April 28, 1978, P.L. 202, No. 53, 42 Pa.C.S.A. 5554.

In view of the possible uncertainty regarding the reasons for the discharge, it occurred to us that the District Justice may be required to testify at a preliminary hearing. That being the case, we determined that the interests of justice would dictate that the hearing be held before someone other than the original committing magistrate. For purposes of convenience, it made sense to assign it to a Judge of this Court rather than another District Justice.

The primary reason for our order, however, was concern for the young victim. If the statute of limitations is a bar to further prosecution, then we can see nothing to be gained but perhaps a great deal to be lost by requiring this victim to testify in vain. Therefore, we deemed it appropriate to retain the matter here so that the question of the statute of limitations can be explored and perhaps decided without the necessity of holding a full scale preliminary hearing on the merits.

Trial Court Opinion at 2-3.

On appeal, appellant contends that the Commonwealth failed to establish any reason why a hearing before District Justice Hunsicker would not result in a fair and impartial proceeding and that the trial court erred in granting the motion. We agree that the reasons stated by the common pleas court are inadequate to sustain the order. Nonetheless, "[a] ruling or decision of a lower court will be affirmed if it can be supported on any basis despite the lower court's assignment of a wrong reason." Commonwealth v. Terry, 513 Pa. 381, 402, 521 A.2d 398, 409 (1987), citing Sherwood v. Elgart, 383 Pa. 110, 177 A.2d 899 (1955). Because we find the order properly sustainable on alternate grounds, we affirm the order.

I.

The common pleas court states two reasons for its decision to grant the order: 1) that the district justice might be required to testify at the preliminary hearing; and 2) that by retaining the matter before the Court of Common Pleas the statute of limitations issue could be resolved first, possibly eliminating the need for the alleged child victim to be subjected to pointless questioning. Neither of the reasons stated provides a proper or adequate basis to sustain the order.

A.

Ordinarily, the decision of an issuing authority to dismiss a complaint is deemed interlocutory, and the Commonwealth's sole avenue of redress is to bring the matter before another issuing authority before the statute of limitations period expires. Commonwealth v. Genovese, 493 Pa. 65, 69 n. 7, 425 A.2d 367, 369 n. 7 (1981); Commonwealth v. Hetherington, 460 Pa. 17, 21-22, 331 A.2d 205, 208 (1975); Riggins Case, 435 Pa. 321, 323, 254 A.2d 616, 617 (1969); McNair's Petition, 324 Pa. 48, 54, 187 A. 498, 501 (1936). The doctrines of collateral estoppel, res judicata, law of the case, and stare decisis have no operation in such proceedings; rather, the matter is heard de novo. In Commonwealth v. Prado, 481 Pa. 485, 488, 393 A.2d 8, 10 (1978), however, our Supreme Court held that an issuing authority's decision to dismiss a complaint was appealable when, under the applicable local rules, review of the complaint by another issuing authority was not available.

Together, the right to de novo review and the right to a direct appeal when de novo review is not available provide full and adequate means for the Commonwealth to seek redress from an allegedly erroneous determination by an issuing authority to dismiss a complaint. Consequently, we see no reason to permit the Commonwealth to attack the order dismissing the original complaint collaterally in proceedings on the refiled complaint by subjecting the district justice to a subpoena and the unseemly spectacle of cross-examination as to the basis of his decision to dismiss the original complaint.

Moreover, in the instant case, District Justice Hunsicker permitted the complaint to be refiled, summons to be issued, and a preliminary hearing to be scheduled. Because de novo review of the complaint is available in the instant case, any error in the original proceedings is rendered moot. See Commonwealth v. Genovese, supra; Commonwealth v. Hetherington, supra; Riggins Case, supra; McNair's Petition, supra. Thus, the district justice may not be subpoenaed to testify regarding matters which have been rendered moot, and therefore irrelevant.

B.

The common pleas court also indicated that assignment of a judge of the court of common pleas was necessary in order that the statute of limitations issue could be resolved prior to requiring the alleged child victim to testify at the preliminary hearing. Appellant contends that The Commonwealth is dissatisfied with the initial disposition of the charges and, now that the statute of limitations period has run, the District Attorney is attempting to circumvent the standard preliminary hearing procedure in the hope that this will cure the previous neglect of prosecution.

(Appellant's Brief at 8). (Emphasis added). As noted previously, a refiled complaint must be filed within the limitations period. See Commonwealth v. Hetherington, supra, 331 A.2d at 208. However, we find that the face of the record establishes that at least some of the criminal acts upon which the complaint is predicated occurred within the limitations period, and that de novo review of the complaint is appropriate. ² However, because some of the acts alleged in the probable cause affidavit may have occurred outside the limitations period, it will be necessary for the issuing authority assigned to determine the precise cut-off date for the limitations period. ³

In determining when the limitations cut-off date should be fixed, the issuing authority should inquire as to whether the statute has been tolled for any additional periods of time. See 42 Pa.C.S.A. § 5554. ⁴

We agree that statute of limitations issues should be resolved before a child victim or witness is required to go through the ordeal of testifying at a preliminary hearing. See generally Myers, The Legal Response to Child Abuse, 24 Fam.L.J. 149, 182-84 & nn. 109-112 (1986) (discussing the need to minimize trauma caused by pre-trial procedure); Arther, Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam.Ct.J. 1, 30-31 (1986) (same). The common pleas court's concern for the welfare of the alleged child victim is laudable, and reflects the strides which the courts and the legislature have taken with respect to the special problems and concerns which child sexual abuse cases present. See e.g. 42 Pa.C.S.A. § 5981 et. seq.; 42 Pa.C.S.A. § 5554(3). Nonetheless, we find no reason why the district justice assigned could not have resolved the statute of limitations issue. Consequently, we find this concern to be an inadequate basis upon which to sustain a Pa.R.Crim.P. 23(d) motion.

II.

Nonetheless, we find the order...