Commonwealth v. Allem, 367 Pa. Super. 173

Summary

The Pennsylvania Superior Court affirmed an order temporarily assigning a Court of Common Pleas judge to act as issuing authority for a preliminary hearing after the Commonwealth refiled criminal complaints against Kenneth Allem. The court held that the president judge had authority to make the assignment to facilitate prompt de novo review and efficient administration of justice, although it rejected the trial court’s stated reasons concerning testimony by the original district justice and resolution of the statute-of-limitations issue. A concurring and dissenting opinion argued that the reassignment motion lacked a sufficient basis under Pennsylvania Rule of Criminal Procedure 23(d).

Holdings

1. The president judge of a court of common pleas has authority to temporarily assign a judge of that court as issuing authority to conduct a preliminary hearing on a refiled complaint.
2. Reassignment was proper because the Commonwealth was entitled to prompt de novo review of the refiled complaint before a different issuing authority, and the fact that the complaint was refiled before the original issuing authority did not waive that right.
3. The written motion, service on Allem, written answer, and opportunity for oral argument were more than adequate to satisfy any requirement under Rule 23(d) of reasonable notice and an opportunity to defend.
4. De novo review of the refiled complaint was appropriate because the face of the record established that at least some alleged acts occurred within the limitations period; the assigned issuing authority was required to determine the precise cutoff date and any tolling.

Questions Presented

1. Whether the president judge of the court of common pleas had authority to reassign the refiled complaint from the original district justice to a judge of the court of common pleas as issuing authority.
2. Whether reassignment was proper to permit prompt de novo review of the refiled complaint by a different issuing authority.
3. Whether the procedures used to grant the reassignment motion satisfied any requirement of reasonable notice and an opportunity to defend under Pennsylvania Rule of Criminal Procedure 23(d).
4. Whether the Commonwealth could refile the complaint and obtain de novo review when at least some alleged criminal acts occurred within the applicable limitations period.

Disposition

affirmed