J-A08005-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     :      IN THE SUPERIOR COURT OF
                                                  :            PENNSYLVANIA
                            Appellant             :
                                                  :
                       v.                         :
                                                  :
CHRISTOPHER VINCENT DEMANNO,                      :
                                                  :
                            Appellee              :      No. 1425 MDA 2014

                  Appeal from the Order Entered August 7, 2014,
                 in the Court of Common Pleas of Clinton County,
              Criminal Division at No(s): CP-18-MD-0000123-2014

BEFORE: S HOGAN, WECHT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MAY 13, 2015

        I respectfully dissent.

        I acknowledge          that this Court is         not required to      accept the

Commonwealth’s certification that the trial court’s order will terminate or

substantially handicap the prosecution.                See, e.g., Commonwealth v.

Wright,      99      A.3d     565,      568 n.1   (Pa.    Super.     2014)    (“While   the

Commonwealth's good faith certification under Rule 311(d) is entitled to

some deference, this Court need not accept its good faith certification in

every     case.”).          However,     I   believe     that   we   should   accept    the

Commonwealth’s certification in this case and conclude that this Court has

jurisdiction over the appeal pursuant to Pa.R.A.P. 311(d).

        The MDJ dismissed the charges against Appellee, concluding that the

Commonwealth failed to present a prima facie case against him.                      In my



* Retired Senior Judge assigned to the Superior Court.
J-A08005-15


view, it is more than reasonable to believe that, if that MDJ is presented with

the same evidence and the same charges at a second preliminary hearing,

the MDJ again will dismiss the charges against Appellee.             Thus, the trial

court’s order denying the Commonwealth’s motion for the temporary

assignment of an issuing authority has the practical effect of terminating the

Commonwealth’s case against Appellee.         For these reasons, I am satisfied

that this Court has jurisdiction to reach the merits of the Commonwealth’s

appeal. Cf. Commonwealth v. Wright, 910 A.2d 648, 653-55 (Pa. 2006)

(plurality opinion) (holding that the Commonwealth could appeal pursuant to

Pa.R.A.P. 311(d) from an order denying the Commonwealth’s motion to

recuse).

      As to the merits of the Commonwealth’s claims, I agree with the

Commonwealth that the trial court utilized an improper standard in denying

the motion for the temporary assignment of an issuing authority. The trial

court denied the Commonwealth’s motion based upon a determination that

the Commonwealth failed to present any evidence that the MDJ was partial

or biased.    In my view, the court should have examined whether the

Commonwealth made a good faith allegation that the MDJ erred by

dismissing Appellee’s charges.      See Commonwealth v. Shoop, 617 A.2d

351, 353 (Pa. Super. 1992) (“[W]here the Commonwealth in good faith

alleges improper dismissal by a district justice, it must have the opportunity

to   bring   the   re-arrest   before   another   district   justice.”);   see   also



                                        -2-
J-A08005-15


Pa.R.Crim.P. 544 Comment (“Pursuant to paragraph (A), in the usual case,

charges will be reinstituted by filing a complaint with the issuing authority

who dismissed or permitted the withdrawal of the charges. However, there

may be cases in which the attorney for the Commonwealth determines that

a different issuing authority should conduct the preliminary hearing, such as

when an error of law is made by the issuing authority in finding that

the Commonwealth did not sustain its burden to establish a prima

facie case. Paragraph (B) requires that, in these cases, the attorney for the

Commonwealth must file a petition with the court of common pleas

requesting that the president judge, or a judge designated by the president

judge, assign a different issuing authority to conduct the preliminary

hearing.”) (emphasis added).

      After a review of the record, I conclude that the Commonwealth did

make a good faith allegation that the MDJ erred by finding that the

Commonwealth failed to establish a prima facie case against Appellee.

Accordingly, I would reverse the trial court’s order.




                                     -3-
