Com. v. Smith
| Decision Date | 27 February 1975 |
| Citation | 334 A.2d 741,232 Pa.Super. 546 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. David SMITH, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. David Patrick MYERS, Appellee. |
| Court | Pennsylvania Superior Court |
Bernard L. Siegel, First Asst. Dist. Atty., Erie, for appellant.
James R. Dailey, Erie, for appellees.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
This is an appeal by the Commonwealth from the order of the court below dismissing criminal charges filed against the appellees, David Smith, and David Patrick Myers.
The stipulated facts giving rise to this appeal are as follows. Both appellees (hereinafter defendants) were charged, before District Justice Stephen Ostrowski, with the crime of receiving stolen property in violation of 18 P.S. § 4817. The property in question being a 1968 Dodge pick-up truck. On April 26, 1973, after a preliminary hearing, Justice Ostrowski dismissed the charge against each defendant because of the Commonwealth's failure to establish a prima facie case. Subsequently, each defendant was charged, before District Justice Charles Wise, with the crime of accessory after the fact. (18 P.S. § 5105.) The crime for which they were allegedly accessories was the theft and dismantling of the aforementioned pick-up truck. Preliminary hearings relative to this charge were held on June 19, 1973, at the conclusion of which Justice Wise ordered that both defendants be bound over to court. The witnesses, and the testimony, at the hearing held on June 19, 1973, were identical in every material way with the hearing of April 26, 1973. The defendants then filed a pleading entitled 'Application for Dismissal of Charges,' in the Court of Common Pleas of Erie County. A hearing was held on this application, and on September 4, 1973, the lower court concluded that the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973) prevented the Commonwealth from bringing the charge of accessory after the fact ant, therefore, ordered the charges be dismissed. The instant appeal by the Commonwealth followed.
The sole issue presented for our consideration is whether the Commonwealth is barred from bringing a different charge against the defendant(s) following the dismissal of a charge at the preliminary hearing for failure to establish a prima facie case arising from the same criminal episode or transaction. We conclude that the Commonwealth is not barred from initiating the additional proceedings.
A preliminary hearing in our Commonwelth is not a trial and its purpose is not to decide guilt or innocence; but rather to determine whether a prima facie case has been made out which is legally sufficient to hold the accused for the grand jury. Commonwealth ex rel. White v. Myers, 419 Pa. 244, 213 A.2d 662 (1965). Moreover, it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been once placed in jeopardy. In a jury case, jeopardy does not attach until the jury has been impaneled and sworn; and in a non-jury case, jeopardy attaches when the accused has been subjected to a charge and the court has begun to heard evidence. United States v. Pecora, 484 F.2d 1289 (3d Cir. 1973); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972).
In the case at bar, the defendants contend that they were placed in double jeopardy when they were bound over to court on the accessory charges after the initial charge of receiving stolen property had been dismissed at the first preliminary examination. Thus, their argument is reduced to the proposition that a plea of former jeopardy can be predicated on the action of an issuing authority at a preliminary hearing. Although our own appellate courts have never previously addressed themselves to this proposition, the Supreme Court of the United States has discussed the issue. In United States ex rel. Rutz v. Levy, ...
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Richmond v. State
...are more of some of the recent cases holding that dismissal does not bar refiling before another magistrate: Commonwealth v. Smith, 1975, 232 Pa.Super. 546, 1975, 334 A.2d 741; Perkins v. State, 1975, 26 Md.App. 526, 339 A.2d 360; State v. Thomas, Mo.1975, 529 S.W.2d 379; People v. Uhlemann......
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Com. v. Dasilva
...attaches when the accused has been subjected to a charge and the court has begun to hear evidence. Commonwealth v. Smith, 232 Pa.Super. 546, 548-549, 334 A.2d 741, 742 (1975). Consequently, where jeopardy has not attached ab initio, there can be no viable subsequent claim of double jeopardy......
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Commonwealth v. Anderson
...have determined that double jeopardy principles do not apply at the pretrial stage. For example, in Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741, 742 (1975) ( en banc ), our Court held that the defendants were not subjected to double jeopardy when they were bound over for trial on......
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Com. v. Baylor, 214
...S.Ct. 1602, 63 L.Ed.2d 787 (1980); Commonwealth v. Carson, 259 Pa.Super. 183, 191-192, 393 A.2d 778, 781 (1978); Commonwealth v. Smith, 232 Pa.Super. 546, 548, 334 A.2d 741, 742 (1975). Jeopardy is deemed to attach when a jury is sworn in order to protect the accused's right to have his tri......