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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




                                     -2-
