J-A20034-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
              v.                           :
                                           :
 ANTON BRANT BODANZA                       :
                                           :
                    Appellee               :        No. 1732 MDA 2018

               Appeal from the Order Entered October 2, 2018
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0001656-2018


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED OCTOBER 09, 2019

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Berks County Court of Common Pleas, which granted the motion

of Appellee, Anton Brant Bodanza, for a writ of habeas corpus and dismissed

all charges against him. We reverse and remand for further proceedings.

      The relevant facts and procedural history of this case are as follows. On

March 29, 2018, the Commonwealth charged Appellee with criminal homicide,

in connection with the death of Appellee’s mother (“Decedent”), who died on

June 20, 2017.     Special Agent Michael P. Collins of the Office of Attorney

General, Medicaid Fraud Control Section, Care-Dependent Neglect Team,

drafted the affidavit of probable cause.       The affidavit of probable cause

detailed Agent Collins’ investigation and alleged, inter alia, that: (1) Appellee

was the primary caretaker for Decedent between October 10, 2016 and June
J-A20034-19


15, 2017; (2) on June 15, 2017, police and emergency medical services

(“EMS”) responded to Decedent’s residence after Decedent’s daughter

contacted   911   and   reported   that   Appellee   had   withheld   Decedent’s

prescription medication, Lasix, for two weeks; (3) Appellee told police he

withheld the medication because it caused Decedent to urinate more

frequently, and Appellee was tired of cleaning up the mess; (4) Dr. Debra

Zimmerman was Decedent’s primary care physician and educated Appellee on

the importance of Decedent’s medications on several occasions; (5)

Transition-of-Care Nurse Jennifer Mott educated Appellee on the importance

of administering Lasix to Decedent to prevent swelling and edema and to help

Decedent’s heart pump efficiently; (6) Nurse-Case-Manager Nadine Herman

reviewed the importance of Decedent’s medications with Appellee on multiple

occasions, and Appellee admitted during multiple visits that he was not giving

Decedent the Lasix because it made her urinate too frequently; (7) Appellee

admitted to Agent Collins that Decedent’s doctor had discussed with Appellee

the necessity of regularly administering Decedent’s medications and the

purpose of the Lasix; (8) Registered Nurse Erica Smith treated Decedent at

Reading Hospital on June 15, 2017; Appellee told Nurse Smith he did not want

Decedent to have Lasix because Appellee was “holistic” and did not believe in

the medications the hospital was using; (9) the Berks County Office of the

Coroner reported that Appellee had withheld Lasix from Decedent, which

resulted in her hospitalization, and listed the manner of death as homicide;


                                     -2-
J-A20034-19


and (10) the autopsy report indicated the withholding of Lasix initiated the

continuous and unbroken sequence of events and complications, which led to

Decedent’s death on June 20, 2017. Based on the Commonwealth’s charge

of homicide generally, the district magistrate initially denied bail.

        On April 10, 2018, the parties appeared before the district magistrate

for a preliminary hearing. In exchange for the Commonwealth’s agreement

to amend the criminal charges to make Appellee eligible for bail, Appellee

stipulated at his preliminary hearing to the accuracy of the averments set forth

in the criminal complaint and the affidavit of probable cause.1 The magistrate

decided the criminal complaint and affidavit of probable cause established a

prima facie case against Appellee and bound over the charges for trial.

Consistent with the parties’ agreement, the Commonwealth amended the

criminal information on April 19, 2018, reducing the charges against Appellee

to the lesser offenses of third-degree murder and involuntary manslaughter.

On April 23, 2018, Appellee filed a motion to set bail, which the court set at

$150,000.00 on April 26, 2018.

        On May 24, 2018, Appellee filed an omnibus pre-trial motion for, inter

alia, a writ of habeas corpus.        In the motion, Appellee maintained he had

stipulated to the accuracy of the criminal complaint and affidavit of probable

cause only for the preliminary hearing, but he had preserved his right to



____________________________________________


1   The record confirms the parties’ agreement in this respect.

                                           -3-
J-A20034-19


challenge the Commonwealth’s evidence by writ of habeas corpus. Appellee

claimed the Commonwealth failed to establish a prima facie case. The trial

court scheduled a hearing on Appellee’s motion for July 20, 2018.2

       The parties appeared for a habeas corpus hearing on July 20, 2018. The

Deputy Attorney General represented the Commonwealth, marked for

admission the criminal complaint and affidavit of probable cause, and

explained to the court that Appellee had stipulated at the preliminary hearing

to the accuracy of the facts set forth in the criminal complaint and affidavit of

probable cause.      The Commonwealth contended the trial court’s scope of

review during the habeas corpus proceeding was limited to the stipulated

record of the preliminary hearing (the criminal complaint and affidavit of

probable cause) in deciding if the evidence before the magistrate constituted

a prima facie case.

       Defense counsel countered that the customary practice in Berks County

to avoid conducting a full preliminary hearing is either to: (1) waive the

preliminary hearing (which also generally waives the defendant’s right to a

habeas corpus hearing); or (2) proceed to a stipulated preliminary hearing

based on the criminal complaint and affidavit of probable cause for purposes

of the preliminary hearing only, while retaining the right to challenge the


____________________________________________


2 Appellee’s omnibus pre-trial motion also sought discovery and suppression
of evidence. Appellee subsequently abandoned the request for discovery,
when the Commonwealth asserted it would produce any new discovery that
arose. Appellee withdrew the suppression motion.

                                           -4-
J-A20034-19


Commonwealth’s evidence at a later habeas corpus hearing. Defense counsel

insisted Appellee had chosen option (2), argued that the record established at

the preliminary hearing was nonbinding, and the Commonwealth must

produce live, non-hearsay testimony on habeas corpus review.             Defense

counsel also claimed the Commonwealth’s evidence was insufficient because

counsel was sure the Commonwealth’s witnesses would testify inconsistently

with their statements set forth in the criminal complaint and affidavit of

probable cause.

      The court agreed with defense counsel regarding the “custom” in Berks

County for a defendant to proceed to a stipulated preliminary hearing, based

on the criminal complaint and affidavit of probable cause, while retaining the

right to challenge the Commonwealth’s evidence anew at a habeas corpus

proceeding.    Under the “custom” in Berks County, the court informed the

Commonwealth it was required to produce live, non-hearsay testimony at the

habeas corpus proceeding to establish a prima facie case. The court conceded

the habeas corpus proceeding is really a “second bite at the apple” but stated

this habeas corpus process favors both sides because the defense gets a

second chance to test the Commonwealth’s evidence and the Commonwealth

gets the opportunity to present evidence in addition to what it had produced

at   the   preliminary   hearing.   The   court   further   indicated   that   the

Commonwealth could not, for habeas corpus review, rely solely on the

transcript from the preliminary hearing, even if the Commonwealth had


                                     -5-
J-A20034-19


produced live testimony at the preliminary hearing.         Rather, the court

explained the “custom” in Berks County is to have the Commonwealth

reestablish a prima facie case on habeas corpus review.             The court

acknowledged that defense counsel was very familiar with Berks County

practice and concluded it would be unfair to Appellee to interpret his

stipulation at the preliminary hearing as a limitation on the court’s scope of

review by binding Appellee to the accuracy of the criminal complaint and

affidavit of probable cause at a later habeas corpus hearing. The court offered

the Commonwealth a continuance to secure witnesses.              Instead, the

Commonwealth asked to brief the issue, and the court granted the request.

      The Commonwealth filed a memorandum of law on July 27, 2018, and

Appellee filed a memorandum of law on August 15, 2018. The court issued

an order on August 24, 2018, stating Appellee’s stipulation at the preliminary

hearing did not constitute a waiver of the preliminary hearing, which would

generally waive Appellee’s right to challenge the Commonwealth’s evidence in

a later habeas corpus proceeding. Likewise, the court said Appellee was not

bound by the stipulation for any other purpose or proceeding. Thus, the court

refused to deny Appellee’s motion for writ of habeas corpus and scheduled

another habeas corpus hearing.

      The parties appeared for the second habeas corpus hearing on

September 21, 2018. The Commonwealth introduced Appellee’s omnibus pre-

trial motion as Exhibit 1 and the criminal complaint and affidavit of probable


                                     -6-
J-A20034-19


cause as Exhibit 2.        The Commonwealth indicated it would not present

additional testimony.       Defense counsel raised a hearsay objection to the

criminal complaint and affidavit of probable cause, and the court sustained

the objection. Appellee subsequently moved to dismiss all charges, and the

court granted Appellee’s request.

        The Commonwealth timely filed a notice of appeal on October 19, 2018.3

On October 24, 2018, the court ordered the Commonwealth to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Following an extension of time, the Commonwealth timely complied on

December 5, 2018. In its responsive Rule 1925(a) opinion, the trial court

conceded the Commonwealth is not required to re-establish a prima facie case

at a habeas corpus proceeding, and agreed that the court’s scope of habeas

corpus review is limited to the factual basis for the magistrate’s decision.

Nevertheless, the trial court insisted habeas corpus relief was still proper in

this case because the Commonwealth could not rely on hearsay evidence

alone to establish a prima facie case at the preliminary hearing or at the

habeas corpus hearing. (See Trial Court Opinion, filed January 25, 2019, at

4-5).

        The Commonwealth raises two issues for our review:

          DID THE TRIAL COURT ERR BY REFUSING TO ADJUDICATE
____________________________________________


3See Commonwealth v. Huggins, 575 Pa. 395, 399 n.2, 836 A.2d 862, 865
n.2 (2003) (stating: “When a charge is dismissed on a pre-trial writ of habeas
corpus, the Commonwealth may appeal”).

                                           -7-
J-A20034-19


         [APPELLEE’S] MOTION FOR WRIT OF HABEAS CORPUS
         RELIEF BASED ON THE RECORD ESTABLISHED AT HIS
         PRELIMINARY HEARING AND BY REQUIRING THE
         COMMONWEALTH TO REESTABLISH A PRIMA FACIE CASE
         VIA WITNESS TESTIMONY AT [APPELLEE’S] HABEAS
         CORPUS HEARING?

         SHOULD THIS COURT AFFIRM THE TRIAL COURT’S GRANT
         OF [APPELLEE’S] MOTION FOR WRIT OF HABEAS CORPUS,
         DESPITE THE COURT’S ADMISSION ON APPEAL THAT IT
         ERRED IN REQUIRING THE COMMONWEALTH TO
         REESTABLISH A PRIMA FACIE CASE AT [APPELLEE’S]
         HABEAS CORPUS HEARING, BASED ON THE COURT’S
         ALTERNATIVE RATIONALE THAT A PRIMA FACIE CASE
         CANNOT BE ESTABLISHED ON HEARSAY ALONE, WHEN
         [APPELLEE] STIPULATED THAT THE CRIMINAL COMPLAINT
         AND AFFIDAVIT OF PROBABLE CAUSE IN SUPPORT OF SAID
         COMPLAINT WOULD PROVIDE THE EVIDENTIARY BASIS AT
         HIS PRELIMINARY HEARING?

(Commonwealth’s Brief at 4).

      “In reviewing a trial court’s order granting a defendant’s petition for writ

of habeas corpus, we must generally consider whether the record supports

the trial court’s findings, and whether the inferences and legal conclusions

drawn from those findings are free from error.” Commonwealth v. Hilliard,

172 A.3d 5, 10 (Pa.Super. 2017) (internal citations and quotation marks

omitted).   Further, “the evidentiary sufficiency, or lack thereof, of the

Commonwealth’s prima facie case for a charged crime is a question of law,”

and the appellate court’s review is plenary. Commonwealth v. Karetny,

583 Pa. 514, 528, 880 A.2d 505, 513 (2005).

      We combine the Commonwealth’s issues. The Commonwealth asserts

Appellee stipulated to the accuracy of the criminal complaint and affidavit of


                                      -8-
J-A20034-19


probable cause at the preliminary hearing. The Commonwealth argues the

trial court’s scope of habeas corpus review was limited to the record

established at the preliminary hearing via the parties’ stipulation. Because

Appellee stipulated to the content of the criminal complaint and affidavit of

probable cause at the preliminary hearing (and essentially waived any

evidentiary challenges to those documents), the Commonwealth insists the

stipulation controls   and any    hearsay concerns are      irrelevant.    The

Commonwealth emphasizes Appellee made no hearsay or other objection to

the content of the criminal complaint or affidavit of probable cause at the

preliminary hearing, so he waived those objections for purposes of the habeas

corpus proceeding or on appeal.        The Commonwealth highlights the trial

court’s concession in its Rule 1925(a) opinion that it should have considered

only the record from the preliminary hearing to decide Appellee’s habeas

corpus motion. The Commonwealth submits Appellee was afforded the full

panoply of rights available at his preliminary hearing, including the option of

having the Commonwealth produce live testimony through witnesses the

Commonwealth had available to testify at that time.       The Commonwealth

stresses Appellee chose to proceed with a stipulated preliminary hearing, and

he could not “undo” his stipulation for purposes of habeas corpus review or

complain about the process the Commonwealth used to establish a prima facie

case, because Appellee agreed to it.

      Further, the Commonwealth submits the local county customs and


                                       -9-
J-A20034-19


practices do not conform to or supersede Pennsylvania law. Specifically, the

Commonwealth contends it was not required to produce live testimony or re-

establish its prima facie case anew at the habeas corpus hearing.            The

Commonwealth concludes the trial court improperly granted habeas corpus

relief, and this Court must reverse and remand for further proceedings.

        In response, Appellee argues he expressly informed the Commonwealth

at the preliminary hearing that he was not waiving his right to a preliminary

hearing because doing so generally constitutes a waiver of the right to litigate

a later motion for a writ of habeas corpus. Appellee maintains he used the

general stipulation that is the “usual and customary practice” in Berks

County.4 Appellee contends the affidavit of probable cause contains Agent

Collins’ summary of several interviews to support probable cause. Appellee

emphasizes the Commonwealth did not call Agent Collins or any of the

individuals he interviewed to testify at the preliminary hearing or at the habeas

corpus hearing, or seek to introduce the autopsy report discussed in the


____________________________________________


4   Appellee states he stipulated as follows:

           [Appellee] will not be signing a Waiver of the Preliminary
           Hearing today and that for the sole and limited purposes of
           this Preliminary Hearing only, if the Commonwealth called
           the witnesses set forth in the Affidavit of Probable Cause at
           the Preliminary Hearing they would testify consistently with
           the contents of the Affidavit of Probable Cause. [Appellee]
           specifically preserves all of his rights to challenge the
           Commonwealth’s evidence at a later date.

(Appellee’s Brief at 23).

                                          - 10 -
J-A20034-19


affidavit of probable cause. Appellee submits the affidavit of probable cause

contains multiple layers of hearsay, none of which would be admissible at trial.

Appellee insists his stipulation was limited solely to the preliminary hearing.

       Appellee also complains the Commonwealth cannot establish the exact

terms of the parties’ stipulation. Absent proof in the record, Appellee claims

this Court should presume no waivers or stipulations exist. Appellee avers he

would have simply waived the preliminary hearing if he did not want to

preserve his right to challenge the Commonwealth’s evidence at a habeas

corpus proceeding; and the primary purpose of going forward with a stipulated

preliminary hearing was to preserve Appellee’s rights. Appellee suggests the

Commonwealth’s attorneys were simply unfamiliar with local customs and

practices concerning stipulated preliminary hearings in Berks County.

Appellee concludes habeas corpus relief was proper, and this Court must

affirm. For the following reasons, we conclude the Commonwealth is entitled

to relief.

       “The purpose of a preliminary hearing is to avoid the incarceration or

trial of a defendant unless there is sufficient evidence to establish a crime was

committed and the probability the defendant could be connected with the

crime.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.Super. 2004)

(internal citation omitted).   See also Pa.R.Crim.P. 542(D) (stating issuing

authority shall determine from evidence presented at preliminary hearing

whether there is prima facie case that (1) offense has been committed; and


                                     - 11 -
J-A20034-19


(2) defendant has committed it).

        The Commonwealth establishes a prima facie case when it
        produces evidence that, if accepted as true, would warrant
        the trial judge to allow the case to go to a jury. [T]he
        Commonwealth need not prove the elements of the crime
        beyond a reasonable doubt; rather, the prima facie standard
        requires evidence of the existence of each and every
        element of the crime charged. Moreover, the weight and
        credibility of the evidence are not factors at this stage, and
        the Commonwealth need only demonstrate sufficient
        probable cause to believe the person charged has
        committed the offense. Inferences reasonably drawn from
        the evidence of record which would support a verdict of
        guilty are to be given effect, and the evidence must be read
        in the light most favorable to the Commonwealth’s case.

Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa.Super. 2001) (internal

citations and quotation marks omitted).

     Following a preliminary hearing,

        A pre-trial habeas corpus motion is the proper means for
        testing whether the Commonwealth has sufficient evidence
        to establish a prima facie case. To demonstrate that a prima
        facie case exists, the Commonwealth must produce
        evidence of every material element of the charged
        offense(s) as well as the defendant’s complicity therein. To
        meet its burden, the Commonwealth may utilize the
        evidence presented at the preliminary hearing and also may
        submit additional proof.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc) (internal citations and quotation marks omitted).             See also

Commonwealth v. Predmore, 199 A.3d 925 (Pa.Super. 2018) (en banc),

appeal denied, ___ Pa. ___, 208 A.3d 459 (2019) (reiterating that pretrial

motion for writ of habeas corpus is appropriate method for defendant to test

whether Commonwealth has established prima facie case; Commonwealth is

                                    - 12 -
J-A20034-19


entitled to rely on evidence presented at preliminary hearing when responding

to pretrial motion for writ of habeas corpus).

      The scope of the trial court’s review in a pretrial motion for writ of

habeas corpus includes the evidence presented at the preliminary hearing and

any additional evidence the Commonwealth chooses to produce to establish a

crime has been committed and the defendant is the person who committed it.

Commonwealth v. Mormon, 541 A.2d 356, 359 (Pa.Super. 1988). In other

words, the trial court accepts into evidence the record from the preliminary

hearing plus any additional evidence the Commonwealth might want to

present to support a prima facie case. Id. at 360.

      A defendant has the right to waive his preliminary hearing.          See

Pa.R.Crim.P. 541 (discussing waiver of preliminary hearing). A defendant who

waives his right to a preliminary hearing also waives his right to test the

sufficiency of the Commonwealth’s evidence in a later pretrial motion for writ

of habeas corpus, unless there is a transcribed oral or written agreement

expressly preserving his right. See Pa.R.Crim.P. 541(A)(1), (C), Comment.

      A defendant can also proceed to a stipulated preliminary hearing,

because “parties may bind themselves by stipulations so long as they do not

affect the jurisdiction of the court, and provided that the stipulations are not

in contravention of peremptory statutory requirements.” Commonwealth v.

Mathis, 463 A.2d 1167, 1171 (Pa.Super. 1983).          Stipulations have been

accepted in    the   context of criminal proceedings.        Id.     See also


                                     - 13 -
J-A20034-19


Commonwealth v. Mitchell, 588 Pa. 19, 69, 902 A.2d 430, 460 (2006),

cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007) (stating:

“A stipulation is a declaration that the fact agreed upon is proven[, and a]

valid stipulation must be enforced according to its terms”).

         Stipulations to the admissibility of evidence are
         common. They do not affect jurisdiction, nor interfere
         with judicial business or convenience; instead, they
         aid the court by saving it time which would otherwise
         be spent on determining admissibility.

         … The court will hold a party bound to his stipulation:
         concessions made in stipulations are judicial
         admissions, and accordingly may not later in the
         proceeding be contradicted by the party who made
         them.

Tyler v. King, 496 A.2d 16, 21-22 (Pa.Super. 1985) (internal citations

omitted) (emphasis added).

      Further, “[l]ocal rules shall not be inconsistent with any general rule of

the Supreme Court or any Act of Assembly.” Pa.R.J.A. 103(d)(2). See also

Commonwealth v. Reyes, 531 Pa. 72, 77, 611 A.2d 190, 193 (1992)

(holding defense counsel’s compliance with “routine local custom” regarding

service of suppression motion was insufficient, where local custom was

inconsistent with statewide rule of procedure; trial court erred by approving

defense counsel’s use of local “custom” over statewide rule of procedure).

      Instantly, the trial court remarked in its Rule 1925(a) opinion as follows:

         Despite the [c]ourt’s statements at the July 20, 2018
         hearing, the [c]ourt agrees with the Commonwealth that the
         trial court’s obligation at a habeas corpus hearing is to
         review the factual basis upon which the magistrate made

                                     - 14 -
J-A20034-19


          her decision. Therefore, the Commonwealth is correct in
          stating that it was not obligated to re-establish a prima facie
          case through a new record and evidentiary basis at the
          habeas corpus hearing. … Nevertheless, the [c]ourt did not
          err by dismissing the charges against Appellee because the
          Commonwealth failed to present sufficient evidence to prove
          a prima facie case. The [c]ourt’s ruling was correct for two
          reasons. First, a defendant’s right to due process forbids
          the Commonwealth from using inadmissible hearsay
          evidence alone to prove a prima facie case. Second, the
          hearsay evidence was so unreliable such that the
          Commonwealth failed to prove a prima facie case.

(Trial Court Opinion at 4-5).

       Notwithstanding the court’s concession on the relevant scope of review,

the court failed to honor Appellee’s stipulation to the facts in the criminal

complaint and the affidavit of probable cause.             Appellee’s stipulation

effectively removed any hearsay objections or concerns.

       We further confirm the Commonwealth was not required to re-establish

a prima facie case at the later habeas corpus hearing.               Rather, the

Commonwealth could rely on the evidence set forth at the stipulated

preliminary hearing, with the option to produce additional testimony/evidence

to   satisfy   its   burden.    See   Predmore,     supra;    Dantzler,     supra.

Consequently, the trial court exceeded the scope of its review at the habeas

corpus proceeding when the court required the Commonwealth to establish its

prima facie case anew and with more evidence than that presented at the

preliminary hearing. See Mormon, supra. Neither defense counsel nor the

trial court could rely on the local “custom” to override statewide law, which

limited the court’s scope of habeas corpus review to the evidence as stipulated

                                      - 15 -
J-A20034-19


at the preliminary hearing and any additional evidence the Commonwealth

chose to present its prima facie case. See Reyes, supra; Mormon, supra.

To the extent that Berks County endorses a “custom” or practice that, as a

practical matter, heightens the Commonwealth’s burden at a habeas corpus

proceeding, we expressly disavow that custom as contrary to state law. See

Pa.R.J.A. 103(d)(2); Reyes, supra.

      Moreover, we cannot accept the court’s alternative hearsay concerns as

a basis to grant habeas corpus relief. Importantly, Appellee stipulated at the

preliminary hearing to the accuracy of the averments set forth in the criminal

complaint and affidavit of probable cause. On habeas corpus review, the trial

court was required to review the preliminary hearing record, based on

Appellee’s stipulation, which conceded the admissibility of the alleged hearsay

evidence. That concession bound Appellee for the preliminary hearing and

the habeas corpus review of that proceeding.       See Tyler, supra.      Thus,

hearsay concerns were not relevant at this juncture, in light of Appellee’s

stipulation. See id.

      The affidavit of probable cause specifically detailed Agent Collins’

investigation and set forth facts demonstrating, inter alia, that: Appellee knew

Decedent needed to take certain prescription medication to reduce swelling,

Appellee withheld the medication because it caused Decedent to urinate more

frequently, and the withholding of medication initiated a continuous, unbroken

sequence of events and complications leading to Decedent’s death.        These


                                     - 16 -
J-A20034-19


stipulated facts, in the light most favorable to the Commonwealth, without

consideration of the weight or credibility of the evidence, were sufficient to

establish a prima facie case for the crimes charged. See Dantzler, supra;

Marti, supra. See also Commonwealth v. Pigg, 571 A.2d 438 (Pa.Super.

1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (1990) (explaining

defendant may be convicted of third-degree murder when killing contains

malice aforethought; malice consists of wickedness of disposition, hardness of

heart, cruelty, recklessness of consequences, and mind regardless of social

duty; malice may be found where defendant consciously disregards unjustified

and extremely high risk that his actions might cause serious bodily injury); 18

Pa.C.S.A. § 2504 (stating person is guilty of involuntary manslaughter when

as direct result from doing unlawful act in reckless or grossly negligent

manner, or doing lawful act in reckless or grossly negligent manner, he causes

death of another person).

      To summarize, the Rules of Criminal Procedure allow for a preliminary

hearing or the waiver of a preliminary hearing and provide for the

consequences of each alternative. See Pa.R.Crim.P. 541; 542. Nothing in

the rules precluded a preliminary hearing by stipulation to the facts in the

affidavit of probable cause and criminal complaint.         Nevertheless, the

stipulated preliminary hearing was still a preliminary hearing, and the court

was bound to accept the record from that preliminary hearing when assessing

whether the Commonwealth presented a prima facie case.         See Mormon,


                                    - 17 -
J-A20034-19


supra.   The habeas corpus hearing following the stipulated preliminary

hearing in this case was a not a hearing de novo; it was more in the nature of

an appeal where the trial court was required to review the magistrate’s

decision based on the evidence presented at the preliminary hearing (plus any

additional evidence the Commonwealth chose to present) in the light most

favorable to the Commonwealth. See Dantzler, supra; Marti, supra. The

trial court erred as a matter of law when it elevated the local custom over

state law, thereby subjecting the Commonwealth to a complete “do over,” and

then dismissed the charges against Appellee.     Accordingly, we reverse the

order granting Appellee habeas corpus relief and remand for trial.

     Order reversed; case remanded. Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/9/2019




                                    - 18 -
