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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                   FILED MAY 13, 2015

       The Commonwealth appeals from the order denying its request to

assign a different magisterial district justice (“MDJ”) to conduct a preliminary

hearing    on    charges      refiled   against   Christopher   Vincent   Demanno

(“Appellee”). We quash.

       The trial court summarized the factual and procedural history of this

case as follows:

             On March 6, 2014, Christopher Demanno [Appellee]
       knocked and was permitted entry into the City of Lock Haven
       police station at 4:30 AM. (Preliminary Hearing Transcript of
       May 15, 2014 p. 5-6).      Officers believed that [Appellee’s]
       behavior warranted a petition for mental health commitment.
       (N.T. 6). Three officers transported [Appellee] to the Lock
       Haven Hospital Emergency Room for a mental health evaluation.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     (N.T. 7). [Appellee] was placed in the room where mental
     health evaluations are conducted, and [Appellee] subsequently
     began to become aggravated which resulted in him cursing
     repeatedly and stating that he is “Jesus Christ.” (N.T. 7-9).
     [Appellee] then grabbed a bag which contained his personal
     belongings, exited the mental health evaluation room, and
     attempted to exit the hospital while stating to the three officers
     that he was leaving and did not have to listen to the officers.
     (N.T. 21). When [Appellee] attempted to move towards the exit
     of the hospital, one of the officers grabbed [Appellee’s] bag and
     told [Appellee] to let go of the bag and return to the mental
     [health] evaluation room. (N.T. 22). [Appellee] yanked his bag
     and kicked the officer in the abdomen. (N.T. 22). The officer
     was caught off balance by the kick and stumbled backwards.
     (N.T. 23). After the kick, [Appellee] continued to have an
     “aggressive posture” with his fists raised. (N.T. 9-10). Another
     officer deployed his taser on [Appellee] after [Appellee] refused
     to get on the ground. (N.T. 10). The officer’s taser misfired and
     [Appellee] stayed in place with his “aggressive posture” (N.T.
     18). Another officer then fired his taser, which incapacitated
     [Appellee]. (N.T. 10). [Appellee] was compliant with officers
     after being hit with the second taser. (N.T. 18).

           [Appellee] was charged with one count of aggravated
     assault under [18 Pa.C.S.] Section 2702(a)(2), one count of
     aggravated assault under [18 Pa.C.S.] Section 2702(a)(3), one
     count of simple assault under [18 Pa.C.S.] Section 2701(a)(1),
     one count of resisting arrest under Section 5104, one count of
     disorderly conduct under Section 5503(a)(1), and one count of
     harassment under Section 2709(a)(1).

           The preliminary hearing in this case was held on May 13,
     2014, and resulted in the Magisterial District Judge (hereinafter
     referred to as MDJ) dismissing all of the charges against
     [Appellee] for the failure of the Commonwealth to present a
     prima facie case.

Trial Court Opinion, 8/7/14, at 1–2. The Commonwealth refiled the charges

on June 23, 2014. On July 10, 2014, the Commonwealth filed a motion for

the temporary assignment of an issuing authority, requesting that the

Clinton County president judge assign a different MDJ to conduct the

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preliminary hearing on the refiled charges; the Commonwealth would not be

presenting new evidence.       Following the hearing on August 4, 2014, the

president judge denied the Commonwealth’s motion on August 7, 2014.

      This appeal followed, in which the Commonwealth presents two

questions for our review:

      I.     Does the trial court’s failure to grant Commonwealth’s
             motion for temporary assignment of issuing authority
             terminate the case such that an appeal to the Superior
             Court is proper?

      II.    Did the trial court err in denying Commonwealth’s motion
             for temporary assignment of issuing authority with [sic]
             magisterial district judge improperly dismissed charges
             despite the presentation of a prima facie case?

Commonwealth’s Brief at 4.

      This   case   involves   the   interplay   between   the   Commonwealth’s

authority under Pa.R.Crim.P. 544(B) to request a different MDJ and the trial

court’s exercise of discretion under Pa.R.Crim.P. 132(A) in disposing of that

request. Pa.R.Crim.P. 544(B) provides as follows:

      Following the re-filing of a complaint . . ., if the attorney for the
      Commonwealth determines that the preliminary hearing should
      be conducted by a different issuing authority, the attorney shall
      file a Rule 132 motion with the clerk of courts requesting that
      the president judge, or a judge designated by the president
      judge, assign a different issuing authority to conduct the
      preliminary hearing. The motion shall set forth the reasons for
      requesting a different issuing authority.

Pa.R.Crim.P. 132(A) provides, in relevant part, as follows:

      The president judge may assign temporarily the issuing authority
      of any magisterial district to serve another magisterial district
      whenever such assignment is needed:

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                                   * * *

           (2) to insure fair and impartial proceedings;

           (3) to conduct a preliminary hearing pursuant to
           Rule 544(B); or

           (4) otherwise for the efficient administration of
           justice.

Our standard of review is abuse of discretion. Commonwealth v. Thorpe,

701 A.3d 488, 490 (Pa. 1997).

     This Court has recognized that an order assigning a different district

justice to hear refiled charges is appealable under Pa.R.A.P. 311(a)(3)

(change of venue) as an interlocutory appeal as of right. Commonwealth

v. Jones, 633 A.2d 185, 186 n.1 (Pa. Super. 1993); Commonwealth v.

Shoop, 617 A.2d 351 (Pa. Super. 1992); Commonwealth v. Allem, 532

A.2d 845 (Pa. Super. 1987); Commonwealth v. Sufrich, 466 A.2d 1058

(Pa. Super. 1983).   Contrarily, an order denying a petition for change of

venue is not appealable.   Commonwealth v. Mitchell, 72 A.3d 715 (Pa.

Super. 2013); Commonwealth v. Swanson, 225 A.2d 231 (Pa. 1967).

     Given that the Commonwealth appealed from an order denying a

change of venue, we directed the Commonwealth to show cause why its

appeal should not be quashed as interlocutory. Order, 9/22/14.    Invoking

Pa.R.A.P. 311(d), the Commonwealth responded that its prosecution of

Appellee will be effectively terminated if we do not reverse the order.




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Statement of Termination of Case, 10/7/14, at ¶ 10. Pa.R.Crim.P. 311(d)

provides as follows:

       In a criminal case, under the circumstances provided by law, the
       Commonwealth may take an appeal as of right from an order
       that does not end the entire case where the Commonwealth
       certifies in the notice of appeal that the order will terminate or
       substantially handicap the prosecution.[1]

According to the Commonwealth, the first MDJ “improperly dismissed the

charges in light of Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super.

2001) and Commonwealth v. Polston, 616 A.2d 669 (Pa. Super. 1992).”

Id. at ¶ 5. The Commonwealth anticipates that the denial of its requested

reassignment will result in the same MDJ conducting the preliminary hearing

on the refiled charges and, because no additional evidence will be presented,

again dismissing the charges based on its allegedly improper legal analysis.

Statement of Termination of Case, 10/7/14, at ¶¶ 7, 8.

       Upon review, we reject the Commonwealth’s assertion that its

prosecution of Appellee will be effectively terminated if we do not reverse

the trial court’s order denying reassignment.     The Commonwealth merely

speculates that the same MDJ will again dismiss the charges at the second

preliminary hearing. However, assuming the same MDJ does, in fact, hear

the refiled charges—on further consideration of statutory authority, case law,

____________________________________________


1
   The Commonwealth certified in its notice of appeal that the trial court
order “will terminate or substantially handicap the prosecution.” Notice of
Appeal, 8/22/14.



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and the Commonwealth’s arguments—he may reverse his position on

whether the Commonwealth’s evidence supports a prima facie case against

Appellee.

     As the trial court observed, “What the Commonwealth has asserted is

tantamount to a simple disagreement with the dismissal of charges.” Trial

Court Opinion, 8/7/14, at 4. Given this disagreement, the Commonwealth

requested a change of venue. The denial of its request is not appealable.

Mitchell; Swanson.

     Appeal quashed.

     Judge Wecht joins the memorandum.

     Judge Strassburger files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2015




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