Com. v. Bernhardt

• Decision Date: 13 January 1987
• Citation: 359 Pa.Super. 413,519 A.2d 417
• Parties: COMMONWEALTH of Pennsylvania v. Montinez BERNHARDT, Appellant. COMMONWEALTH of Pennsylvania v. Anthony OWENS, Appellant.
• Court: Pennsylvania Superior Court

Page 417

519 A.2d 417

359 Pa.Super. 413

COMMONWEALTH of Pennsylvania v. Montinez BERNHARDT, Appellant.

COMMONWEALTH of Pennsylvania v. Anthony OWENS, Appellant.

Superior Court of Pennsylvania.

Argued May 29, 1986.

Filed Nov. 21, 1986.

Reargument Denied Jan. 13, 1987.

Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for appellants.

Leonard Dentchman, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, BECK and JOHNSON, JJ.

JOHNSON, Judge:

These consolidated appeals are from separate orders denying Appellants' petitions for a writ of habeas corpus. These appeals present for our review the question of whether a criminal defendant is entitled to a writ of habeas corpus where he is subject to a lengthy incarceration prior to his preliminary hearing without cause shown.

On July 27, 1984, Appellant Bernhardt was arrested without a warrant by Philadelphia police and charged with robbery and related offenses. Following a preliminary arraignment, bail was set at $4,000.00. Bernhardt's preliminary hearing was scheduled for August 2, 1984. When the complaining witness failed to appear, the Commonwealth requested and was granted a continuance. The preliminary hearing was continued until December 19, 1984. Bernhardt's bail was also reduced to $3,000.00. Subsequently on August 22, 1984, appellant Bernhardt filed a petition for a writ of habeas corpus, wherein he requested to be discharged from custody pending his preliminary hearing. Following a hearing, the trial court denied the petition for writ of habeas corpus on September 10, 1984. A subsequent petition to reduce bail was denied by the court on October 1, 1984. On October 4, 1984, Bernhardt filed a timely appeal to this court from the order denying his petition for habeas relief. Appellant's motion for release pending a disposition of his appeal was denied by this court per curiam on October 10, 1984. Later on October 12, 1984 Bernhardt was released on bail. Thereafter on December 19, 1984, when the complainant failed to appear for the preliminary hearing, the trial court granted the Commonwealth's motion to withdraw the prosecution without prejudice.

Appellant Owens was arrested on March 20, 1985 and charged inter alia, with burglary and receiving stolen property. Bail was set at $25,000.00 and Owens' preliminary hearing was scheduled for March 27, 1985. On that date, the Commonwealth requested and was granted a continuance for further preparation. The preliminary hearing was rescheduled for May 7, 1985. The record indicates that on April 1, 1985 a petition for reduction of bail/writ of habeas corpus was filed. A review of the record indicates that the document filed on April 1, 1985 was captioned petition for reduction of bail, with the language "writ of habeas corpus" handwritten in pencil underneath. On the back of the petition is a stamp signed by Judge David N. Savitt indicating that the petition for bail was denied on April 8, 1985. Further review of the notes of testimony show that a hearing was held on the petition for writ of habeas corpus, N.T., 4/26/85, after which Judge Savitt denied appellant habeas relief. Following a hearing on April 26, 1985, Judge Savitt orally denied appellant Owens' petition for a writ of habeas corpus. On April 30, 1985, this appeal followed. Subsequently on May 7, 1985, Owens' preliminary hearing was held and appellant Owens was bound over for trial.

Before addressing the merits of this appeal we must first determine whether the Superior Court has jurisdiction.

Generally, an immediate appeal will not lie from an order denying a pretrial petition for habeas corpus as such an order is interlocutory. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980). However, where exceptional circumstances exist, denial of a pretrial application for a writ of habeas corpus may be appealable. We note that in Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977) this court addressed the merits of an appeal challenging a pretrial petition for habeas relief without comment on whether such an order was interlocutory. In Commonwealth v. Rucco, 229 Pa.Super. 247, 324 A.2d 388 (1974), this court defined extraordinary circumstances as those "requiring the safeguarding of basic human rights." We feel that the facts of these appeals constitute such exceptional circumstances. Commonwealth v. Donohue. (Nos. 1304 and 1305 Philadelphia 1985; filed October 14, 1986).

Normally, the existence of an actual controversy is essential to appellate jurisdiction and, if an event occurs which renders it impossible to grant any relief, the issue is moot. K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984). However, exceptions to the mootness doctrine exist where (1) the question involved is capable of repetition but likely to evade review or; (2) the question involved is one of public importance. In Re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985); Commonwealth v. Smith, supra. In evaluating whether a question is capable of repetition but likely to evade review, we will consider whether the challenged action is too short in its duration to permit full litigation and whether there is a reasonable expectation that the same complaining party will be subject to the same action again. Dorone, supra, Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983).

The Commonwealth submits that the issues raised do not fall within the exception to the case or controversy requirement as appellants could have sought review of their bail determinations pursuant to Pa.R.A.P. 1762(a)(2) and 1501 et. seq. However, Pa.R.A.P. 1561, which addresses the disposition of a petition for review, provides in section (d) that review in the nature of criminal habeas corpus or post conviction hearing relief may not be granted under this chapter. Here appellants seek review not of their bail determinations but rather denial of habeas corpus relief.

Pretrial detentions, such as those in the instant matter, are by their nature temporary. As such it is unlikely that any challenge to pretrial detentions would be afforded full appellate review prior to a defendant's release or conviction. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54, 63 (1975). Appellant Bernhardt was released on bail and the charges against him were ultimately withdrawn. Appellant Owens was bound over for trial after a preliminary hearing held subsequent to the filing of this appeal. Accordingly, the questions raised by these appeals are moot as to these individual defendants. However, there is a reasonable likelihood that other defendants will be subject to lengthy preliminary hearing delays. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).

In Carros, supra, the court was confronted with the question of whether a child committed to a child welfare agency by juvenile court as a deprived child has a right to treatment. While the child in that case had attained majority prior to argument on the appeal and was no longer under the supervision of the Child Welfare Services, the court in finding jurisdiction viewed the matter as a continuing controversy affecting a large number of people. In reaching this conclusion, the court noted that the action was not brought as a class action nor was testimony received during the hearings below as to the possible adverse affects of Child Welfare Services practices on other children. The fact that Child Welfare Services would continue to serve deprived children made its ability to render suitable service to those children remain at issue.

Here we have a similar situation, where the action was not brought as a class action nor was testimony received with respect to the impact of Philadelphia County's preliminary hearing scheduling practices on other defendants. Nevertheless, it is reasonable to assume that criminal defendants will continue to be brought before Philadelphia County courts and, its ability to schedule and hold prompt preliminary hearing will remain at issue. We note that at oral argument defendants submitted, and to its credit the Commonwealth did not vigorously deny, that the practice of preliminary hearing delays beyond 10 days was a recurring event in Philadelphia County.

Finally, we note that the issues presented involve deprivations of liberty, a matter of public importance. In Re S.O., 342 Pa.Super. 215, 492 A.2d 727 (1985) (while commitment periods in question have expired, live controversy still exists since involuntary commitment orders involve important liberty interests over which it behooves us to maintain appellate vigilance). In light of the foregoing analysis, we conclude that while the matters raised in these appeals are moot, the significant interests involved necessitate appellate review. We will therefore consider the merits of the issues presented.

We have chosen not to address the constitutional implications of the issues raised in this appeal as the issues involved are capable of resolution on a nonconstitutional basis....