Commonwealth v. Thorpe

OPINION OF THE COURT

FLAHERTY, Chief Justice.

Cornelius Thorpe was charged with robbery conspiracy and related offenses in January, 1993. The Commonwealth was unprepared to proceed at several preliminary hearings, and after Thorpe had been imprisoned for two months, the case was dismissed.

On October 3,1993, the charges were refiled, and on August 13, 1994, Thorpe was rearrested. The Commonwealth again was unprepared to proceed at four consecutive preliminary hearings. Again, charges were dismissed on November 14, 1994, this time after Thorpe had spent an additional three months in jail.

Immediately after the dismissal, charges were refiled for the third time. A preliminary hearing was held November 29, 1994, and the district justice dismissed the case with prejudice on the grounds that a prima facie case had not been presented.

On December 14, 1994, the Commonwealth filed a motion requesting temporary assignment of an issuing authority pursuant to Pa.R.Crim.P 23(b).¹ The trial court initially granted the motion ex parte, but upon Thorpe’s motion and after a hearing, the court set aside the temporary assignment of issuing authority.

The Commonwealth appealed from the trial court’s order and the Superior Court vacated the lower court’s order, remanding the case for a fourth arrest and preliminary hearing. We granted allocatur to consider the propriety of the Superior Court’s granting of the Commonwealth’s request for a temporary assignment of issuing authority.

As a general matter, a defendant may be rearrested after charges have been dismissed at a preliminary hearing so long as the statute of limitations has not expired.² Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987). The Superior Court has held, however, that in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him, or if the rearrest results in prejudice, the prosecution may be barred. See Commonwealth v. Chermansky, 381 Pa.Super. 129, 133, 552 A.2d 1128 (1989). See also Lieiaga v. Court of Common Pleas, 523 Pa. 258, 269, 566 A.2d 246, 251 (1989) (Concurring Op. of Mr. Justice Zappala stating that if a defendant is able to establish that the Commonwealth’s repeated refiling of charges is an attempt to annoy or harass, the Commonwealth should not be allowed to present identical evidence before successive magistrates).

The rules of criminal procedure are silent on rearrest, and this court has spoken on the matter of rearrest only twice in plurality opinions. In Liciaga v. Court of Common Pleas, supra, a plurality held that where the Commonwealth has failed to present a prima facie case before a magistrate, that judgment may be reassessed before another magistrate, either by presenting the same or additional evidence. In Commonwealth v. Kline, 521 Pa. 281, 555 A.2d 892 (1989) a plurality held that unless there is a showing of partiality of a magistrate, the president judge abuses his discretion by granting a request for a new magistrate.

Although the circumstances of this case do not implicate double jeopardy concerns, for jeopardy attaches only when a defendant is “put to trial before the trier of facts,” Liciaga, 523 Pa. at 265, 566 A.2d at 249, there is, nonetheless, a related concern, for in double jeopardy cases and in this case the considerable power of the state is brought to bear repeatedly on an individual in an attempt to deprive him of liberty.

The issue here is whether the Superior Court applied the proper standard of review of the trial court’s denial of the Rule 23(b) motion. As stated earlier, rule 23(b) provides that the president judge may temporarily reassign an issuing authority “to insure fair and impartial proceedings.” Of course, fairness and impartiality considerations, where relevant, also include due process considerations. Thus, the trial court must consider not only the fairness and impartiality of the magistrate, but also the conduct of the Commonwealth in bringing its case. Such considerations, we now hold, are to be conducted in the sound discretion of the trial court.³

In the case at bar, the magistrate concluded that a prima facie case had not been presented. Our independent review of the record before the magistrate confirms that the Commonwealth failed to present a prima facie case and that the magistrate was not biased in making this determination. The trial court, therefore, did not abuse its discretion with respect to the magistrate’s impartiality.

Next, we must consider whether there are due process considerations, such as the Commonwealth’s conduct, which would either require or preclude the reassignment of an issuing authority notwithstanding the magistrate’s impartiality.⁴

As a general rule, the Commonwealth must be free to present its case again even after it has failed to convince a neutral magistrate that it has a prima facie case. In Liciaga the plurality stated:

The public interest in the safety of our citizens requires that a good faith, albeit premature response to criminal conduct, permits the state to call to task those who would violate our laws and threaten the security of our citizens and their possessions. Therefore, if the Commonwealth is unsuccessful in its first attempt to establish a prima facie case, it is not precluded from gathering more evidence to demonstrate that a crime has been committed and that the defendant has probably participated in that conduct.

523 Pa. at 265, 566 A.2d at 249. On the other hand, if the Commonwealth’s conduct intrudes unreasonably upon the due process right of individuals to be free from governmental coercion, the Commonwealth should not be permitted to present the case repeatedly before successive magistrates. In its review, therefore, the appellate court must consider whether the trial court abused its discretion in balancing the need of the Commonwealth to re-present its case against the due process requirement that individuals shall be free of unreasonable and unnecessary government coercion.

In this case, the Commonwealth arrested the defendant three times over a period of nearly two years, imprisoned him for five months, was unprepared to proceed at the time of at least five preliminary hearings, and when it finally did proceed, failed to present a prima facie case. It now seeks to arrest the defendant a fourth time and to present its case again, this time to a different magistrate. Such government conduct amounts to overreaching and is antithetical to a free society. The Commonwealth’s conduct, as a matter of law, constitutes impermissible harassment. Not only was the trial court correct in refusing to grant the Commonwealth’s motion to reassign an issuing authority, but it would have abused its discretion if it had granted the motion.

The order of the Superior Court is reversed.

CASTILLE, J., files a dissenting opinion.

1 . Pa.R.Crim.P. 23(b)(1) provides:

(b) Temporary Assignment.

(1) The president judge may assign temporarily the issuing authority of any magisterial district to serve smother magisterial district whenever such assignment is needed to satisfy the requirements of paragraph (a)(1) [availability of an issuing authority], to insure fair and impartial proceedings, or otherwise for the efficient administration of justice.

2 . This court has held that "a finding by a committing magistrate that the Commonwealth failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Liciaga v. Court of Common Pleas, 523 Pa. at 267, 566 A.2d at 250, citing Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).

3 . Six of the seven justices participating in the decision of Commonwealth v. Kline, 521 Pa. 281, 555 A.2d 892 (1989) treat the appropriate standard of review as abuse of discretion.

4 . As will be noted infra, even if the magistrate fairly and impartially dismissed the Commonwealth's case, the facts of the prosecution may require either that the trial court grant or deny the Commonwealth's rule 23(b) motion. Where the Commonwealth acts in good faith and has made every reasonable effort to bring its case, but has, for some reason, failed to present or to obtain the evidence it is now prepared to present, the trial court should grant the motion. Where the Commonwealth has not acted in good faith, however, the trial court should deny the Commonwealth’s rule 23(b) motion.