Commonwealth v. Donahue ( 1986 )

MONTEMURO, Judge:

This is an appeal from an Order denying habeas corpus relief. Appellants were arrested for drug related offenses on March 24, 1985, based on information received by police through electronic surveillance.¹ A preliminary hearing was scheduled for April 1, 1985. At the request of the district attorney, and over the objections of counsel, the hearing was continued until April 17. On April 16, the hearing was continued a second time, until April 29, again at the instigation of the prosecutor and opposed by the defense. Appellants’ habeas corpus petitions, were filed April 22. The trial court issued rules to be returnable May 1, and stayed further proceedings. The petitions were denied on May 10, and this appeal followed.

We first note that this case presents a jurisdictional question which although not raised by the parties we are empowered, if not compelled, to address sua sponte. Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985).

It is a principle of some antiquity that, in general, an order denying a pre-trial petition for habeas corpus relief is interlocutory, and therefore not immediately appealable barring the existence of “exceptional circumstances.” Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Schroeck, 273 Pa.Super. 386, 417 A.2d 702 (1980). This is particularly true in cases where the petition is grounded on the claim that insufficient evidence was produced at the preliminary hearing to make out a prima facie case against the defendant. Id.

Herein, however, the point of the petition was a demonstration that, prior to appellants’ internment, the strength of the Commonwealth’s case had not even been preliminarily tested, contrary to principles of both procedural and substantive law. We find that this set of circumstances is sufficiently anomalous, and therefore extraordinary, to warrant our intervention, since it presents a set of facts “ ‘requiring the safeguarding of basic human rights.’ ” Commonwealth v. Rucco, 229 Pa.Super. 247, 250, 324 A.2d 388, 389 (1974) (citation omitted). In so finding we are mindful of the “vital purposes of [habeas corpus], which are to obtain relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody.” 39 Am.Jur.2d Habeas Corpus § 2 (1968). It is in fact the principal function of the preliminary hearing to eliminate unlawful detention, Commonwealth v. Harvin, 346 Pa.Super. 575, 500 A.2d 98 (1985); Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977), thus obviating the need for pre-trial habeas corpus relief. Here the opposite effect has been achieved.²

Specifically appellants argue that discharge through habeas proceedings is the proper remedy for violation of Pa.R.Crim.P. 140(d)(1), and 142.

Rule 140(d)(1) reads in pertinent part as follows:

(d) Unless the preliminary hearing is waived by a defendant who is represented by counsel, 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 ...

Rule 142 reads:

The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with: (1) the grounds for granting each continuance, (2) the identity of the party requesting such continuance, and (3) the new date and the reasons that the particular date was chosen.

Appellee argues that the continuances were a result of its inability to comply with the disclosure provisions of the Wiretap Act, 18 Pa.C.S. § 5720³, which requires that certain documents be supplied to all parties prior to any hearing.

However, despite the Rule 142 requirement that “cause shown” for a continuance be noted on the magistrate’s transcript, none is of record here. Nor does appellee, even now, provide us with a reason why the necessary information was forthcoming with so much difficulty given the fact that all of the documents in question must perforce have been in existence prior to appellants’ arrest. Having found a clear violation of both the spirit and the letter of the Rules, we must perforce find as well that the trial court erred in denying habeas corpus. We therefore reverse the Order of the court below.

Reversed.

KELLY, J., files a concurring opinion.

1 . Bond for appellant Kitchener was originally set at $125,000, and for appellant Donahue at $250,000. On June 20, 1985, these amounts were reduced to $20,000 and $50,000 respectively.

2 . We note that this court has previously addressed without comment cases presented in a similar procedural posture. See, e.g., Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977).

3 . 18 Pa.C.S. § 5720:

Service of copy of order and application before disclosure of intercepted communication in trial, hearing or proceeding

The contents of any wire or oral communication intercepted in accordance with the provisions of this chapter, or evidence derived therefrom, shall not be disclosed in any trial hearing or other adversary proceeding before any court of the Commonwealth unless not less than ten days before the trial, hearing or proceeding the parties to the action have been served with a copy of the order, the accompanying application and the final report under which the interception was authorized or, in the case of an interception under section 5704 (relating to exceptions to prohibition on interception and disclosure of communication), notice of the fact and nature of the interception. The service of inventory, order, application, and final report required by this section may be waived by the court only where it finds that the service is not feasible and that the parties will not be prejudiced by the failure to make the service.