Com. v. Dibble, R. ( 2017 )

J-S83036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT WILLIAM DIBBLE,
Appellee No. 594 WDA 2016
Appeal from the Order March 28, 2016
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000583-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2017
I respectfully dissent. After review, I conclude that the trial court
erred in failing to rule on the petition for writ of habeas corpus. This error
was compounded by the trial court sanctioning the Commonwealth by
adding the “with prejudice” language to the order granting the nolle
prosequi, effectively dismissing the charges against Dibble.
While I do not condone the Commonwealth’s failure to obtain proper
documentation from New York, I cannot agree that this amounted to
prosecutorial misconduct warranting dismissal of the charges while there
was a pending habeas corpus petition. Even if the trial court had granted
Dibble’s habeas corpus petition, the Commonwealth would have been
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S83036-16
permitted to “refile the charges and present additional evidence at a new
preliminary hearing in order to correct the evidentiary deficits that existed in
the prosecution of the first complaint.” Commonwealth v. Claffey, 80
A.3d 780, 789-790 (Pa. Super. 2013) (citation omitted). Instead, the trial
court’s extreme sanction gives Dibble a windfall and bars the Commonwealth
from pursuing the charges. I cannot agree that this is an issue of form over
substance, and I would reverse the order granting the nolle prosequi.
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