Opinion
November 11, 1954.
January 14, 1955.
Appeals — Habeas corpus — Averment of lack of prima facie case at magistrate's hearing — Dismissal of petition — Entry of bail — Relator no longer detained — Interlocutory order — Appellate review of matters requiring determination in other forum — "As in other cases" — Act of May 25, 1951, P. L. 415.
1. A relator who, after dismissal of his petition averring that his detention was illegal in that no prima facie case was made out at the preliminary hearing before the magistrate, enters bond for his appearance in the court of quarter sessions, is no longer detained by the respondent warden, and an appeal from a refusal of his petition will be dismissed.
2. An order dismissing a petition for a writ of habeas corpus averring that relator's detention was illegal in that no prima facie case was made out at the preliminary hearing before the magistrate is interlocutory, and, in the absence of a statute authorizing such an appeal, an appeal therefrom will not lie.
3. The writ of habeas corpus may not be used by a relator to effect appellate review of matters requiring determination in another forum.
4. Under § 7 of the Act of May 25, 1951, P. L. 415 (which provides, in part, that an appeal may be taken as in other cases from the decision upon a petition for a writ of habeas corpus), the words "as in other cases" mean "as in other cases at law"; therefore, they preclude a review where the order is interlocutory and not specifically appealable.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Appeal, No. 196, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, July T., 1954, No. 1638, in case of Commonwealth of Pennsylvania ex rel. Jesse Tiller v. Charles Dye, Warden, Allegheny County Jail. Appeal dismissed.
Habeas corpus.
Order entered dismissing rule, opinion by THOMPSON, J. Relator appealed.
A.N. Brunwasser, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.
Argued November 11, 1954.
Relator, on May 14, 1954, presented a petition for writ of habeas corpus to the Court of Common Pleas of Allegheny County. He alleged therein that he was confined in the Allegheny County Jail on a charge of attempted burglary, and that such detention was illegal as no prima facie case was made out at the preliminary hearing before the magistrate. A hearing was held before Judge THOMPSON on relator's petition. At the hearing relator was present with counsel. It was held that the evidence presented at the preliminary hearing, uncontradicted, was sufficient to warrant the arrest and detention of relator. The rule to show cause was discharged and relator's petition was dismissed. Relator has appealed to this Court.
Relator was arrested on May 9, 1954, information was made on May 10, 1954, and hearing before the magistrate was held on May 12, 1954.
There is no basis for an appeal to this Court from the dismissal of relator's petition. Relator had been released from jail on bail for his appearance at the habeas corpus hearing, as provided in section 5 of the Act of May 25, 1951, P. L. 415, 12 Pa.C.S.A. § 1905. It appears from the court records that on May 21, 1954, the same day that the court below by its order dismissed relator's petition for writ of habeas corpus, relator filed a bond in the amount of $2,000 for his appearance in the Court of Quarter Sessions of Allegheny County. This was necessary if he was to remain unconfined, as the dismissal of his petition placed him in the status existing prior to the entry of bail for his appearance at the habeas corpus hearing. Relator, having entered bail for his appearance in the Court of Quarter Sessions on the charge for which he was held by the magistrate, is no longer detained by the respondent warden. Com. ex rel. Spader v. Burke, 171 Pa. Super. 289, 90 A.2d 849. See Com. v. Weinstein,
See Act of February 18, 1785, § 1, 2 Smith's Laws 275, 12 Pa.C.S.A. § 1871; Act of May 25, 1951, P. L. 415, § 1, 12 Pa.C.S.A. § 1901.
177 Pa. Super. 1, 109 A.2d 235. For this reason alone, the appeal would be dismissed. In addition thereto, the appeal is from an interlocutory order, and, in the absence of a statute authorizing such an appeal, it cannot stand. See Com. v. Gates, 98 Pa. Super. 591, 594; Com. v. Greenberg, 136 Pa. Super. 32, 35, 7 A.2d 33.
In Com. ex rel. Stingel v. Hess, 154 Pa. Super. 639, 640, 36 A.2d 848, we said: "If, following the examination provided for in the second section of the act [Act of July 1, 1937, P. L. 2664, 12 Pa.C.S.A. § 1893], the judge deems that the proceedings had not been conducted in accordance with law or that the evidence produced before the committing magistrate was insufficient to make out a prima facie case, requiring the prisoner to be held for court, and orders the prisoner discharged, the Commonwealth may appeal, for that constitutes a final order, which disposes of the proceeding. See Com. ex rel. Scolio v. Hess, 149 Pa. Super. 371, 27 A.2d 705.
"But a dismissal of the writ is not a final order and as an appeal is not specially allowed in the statute, in such event, the relator has no right of appeal until a final judgment has been entered against him following a verdict of guilty. He may be acquitted on the trial." Cf. Com. ex rel. DiDio v. Baldi, 176 Pa. Super. 119, 122, 106 A.2d 910.
The writ of habeas corpus may not be used by a relator to effect appellate review of matters requiring determination in another forum. Besides, our appellate courts have repeatedly held that habeas corpus is not available to review the sufficiency of the evidence upon which a conviction is based, as it is not a substitute for an appeal or for a writ of error or for a motion for new trial. Com. ex rel. Sharpe v. Burke, 174 Pa. Super. 350, 354, 101 A.2d 397. In the present case relator's petition was dismissed, after hearing, on the ground that the evidence produced was sufficient to make out a prima facie case requiring relator to be held for court. The order dismissing the petition and refusing the writ was not a final order from which an appeal lies, and furthermore this appeal is comparable to an attempt to invoke habeas corpus to review matters passed on by the trier of the facts at a trial. See Com. ex rel. Tokarchik v. Claudy, 174 Pa. Super. 509, 512, 102 A.2d 207.
Section 7 of the Act of May 25, 1951, P. L. 415, 12 Pa.C.S.A. § 1907, provides in part: "From the decision of any judge upon any petition for a writ of habeas corpus, or upon any order made pursuant to a hearing on the writ, an appeal may be taken as in other cases."
The words "as in other cases" mean "as in other cases at law." 4 Words and Phrases, Perm. Ed., p. 304. Therefore they preclude a review where the order is interlocutory and not specifically appealable. Otherwise, questions could be raised on appeal which are to be determined at trial and are interlocutory in character. In the absence of disposition of the proceeding by final order it cannot be the subject of review by this Court.
Appeal is dismissed.