Com. v. Carbo

• Decision Date: 11 April 2003
• Citation: 822 A.2d 60
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Richard D. CARBO, Appellee.
• Court: Pennsylvania Superior Court

822 A.2d 60

COMMONWEALTH of Pennsylvania, Appellant v. Richard D. CARBO, Appellee.

Superior Court of Pennsylvania.

Argued September 5, 2002.

Filed April 11, 2003.

Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com., appellant.

Thomas P. Rogers, Norristown, for appellee.

Before: McEWEN, P.J.E., JOHNSON, HUDOCK, FORD ELLIOTT, JOYCE, ORIE MELVIN, TODD, KLEIN and BOWES, JJ.

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 from 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 Myrsiades 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 Myrsiades, 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 Appellee'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 Myrsiades. 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. Gadzicki determined that the Commonwealth had failed 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. ¶ 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 undiscoverable 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. Since the Commonwealth's efforts to refile these charges arose from two procedurally distinct events, we will address them separately.

I. Charges Dismissed After the Preliminary Hearing

¶ 11 Our Supreme Court has long recognized the Commonwealth's ability to reinstitute criminal charges when the charges are dismissed at a preliminary hearing. See In re Riggins, 435 Pa. 321, 323, 254 A.2d 616, 617 (1969); Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 208 (1975); Liciaga v. The Court of Common Pleas of Lehigh County, 523 Pa. 258, 265, 566 A.2d 246, 249 (1989) (plurality opinion); Commonwealth v. Thorpe, 549 Pa. 343, 348, 701 A.2d 488, 490 (1997). On October 8, 1999, our Supreme Court even adopted Rule 544 of the Pennsylvania Rules of Criminal Procedure (formerly Rule 143) to clarify the procedure for refiling dismissed charges. Rule 544 provides as follows:

Rule 544. Reinstituting Charges Following Withdrawal or Dismissal

(A) When charges are dismissed or withdrawn at, or prior to a preliminary hearing, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the refiling of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.

(B) Following the refiling of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 132 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.

Pa.R.Crim.P. 544. Additionally, it is well settled that a magistrate's decision to dismiss criminal charges after a preliminary hearing is unappealable. See Hetherington, 460 Pa. at 22, 331 A.2d at 208. Therefore, the reinstitution of charges is the only recourse available to the Commonwealth after it fails to establish a prima facie case at a preliminary hearing. Id.

¶ 12 Despite the broad language of Rule 544, we note that the Commonwealth's authority to reinstitute criminal charges is not limitless. For example, the Commonwealth must refile the charges prior to the expiration of the statute of...