The Pennsylvania Code of Criminal procedure specifically dictates rules of appeal allowed, and filing an appeal of a ruling made by magisterial court district judge to another court, other than the issuing authority is non compliant with Pennsylvania rules of criminal procedure.
Rule 5.44 – Reinstituting Charges Following Withdrawal or Dismissal.
- (A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict and the complaint is dismissed, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.
- (B) Following the re-filing of a complaint pursuant to paragraph (A), 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.
Pennsylvania Rules of criminal procedure DO NOT dictate that Shapiro may file an appeal with the Superior Court, which is specifically what he has done.
This deviation of filing procedure not only violates the rules, it attempts to circumvent a well-established procedurial process with defaults to the Centre County Court of Common Pleas President Judge, Judge Ruest.
In some respects it is an abject and ostentatious, middle finger of the authority rendered to our local courts. It is not commonplace, and it is unheard of, and filed likely because Josh Shapiro thinks his name, or the “infamy” of this case, renders his deviation of procedural law “special.”
Josh Shapiro has two choices: a) an Appeal to Judge Sinclair (the issuing authority of the dismissal), or, b) An appeal to the presdident Judge of the Centre County Court of Common Pleas for the appointment of a new Judge or “issuing authority.”
Instead, Josh Shapiro, thinks the law does not apply to him, and is attempting to appeal to Superior Court.
That is wholly inappropriate, and violates the rules of the Pennsylvania constitution.
JOSH SHAPIRO IS NOT SPECIAL AND MUST COMPLY WITH THE LAWS ON THE BOOKS, AND IN THE PENNSYLVANIA CONSTITUTION
Several Defense lawyers pointed this obvious procedural flaw out in a hearing this morning:
- Rocco Cipparone, Michael Bonatucci’s attorney, argued the prosecution can seek a different issuing authority, or presiding judge, only if there was an error of law. He also said the ruling of a judge at a preliminary hearing is not an order that can be appealed. CITATION
Rcco Cipparone is correct. The ruling cannot be appealed except to the issuing authority, or to the president judge to appoint a new issuing authority. In short, the OAG can appeal to Judge Sinclair, Judge Lachlan, or they can appeal to Judge Ruest. Josh Shapiro is attempting to circumvent these parties and appeal to Superior Court, a court which lacks jurisdiction or standing to issue a ruling.
Or as Cipparone explains so eloquently in his motion:
- “The Commonwealth is attempting to circumvent its limited option to refile charges and, if it so chooses, to seek a hearing before a different issuing authority. The latter for which there is no viable basis, just as the court found after the first preliminary hearing,” Cipparone said. CITATION
Steve Trialonas took the argument a step further:
- Steven Trialonas, Daniel Casey’s attorney, said Shapiro’s office is attempting to put the former brothers on trial for charges that are not supported by evidence. CITATION
Trialonas also pointed out the procedural defects of Josh Shapiro’s unlawful appeal:
- “In a single, sweeping statement, the Commonwealth seeks to eviscerate a multitude of safeguards afforded to every criminal defendant by the United States Constitution, the Pennsylvania Constitution and the Pennsylvania Rules of Criminal Procedure,” Trialonas said in the motion. He also said Shapiro’s office is acting in bad faith in an attempt to publicly embarrass and harass Casey. CITATION
ATTORNEY GENERAL JOSH SHAPIRO’S OFFICE CONTINUES TO FIGHT ARGUMENTS THAT THEY ARE IN OBVIOUS AND FLAGRANT DISREGARD OF THE RULES:
Brian Zarallo, attempting damage control, stood up to argue the reasons why Josh Shapiro’s office violated procedural law. They said they were “attempting to take the most efficient route.”
- Chief Deputy Attorney General Brian Zarallo disagreed and said the Commonwealth is acting in good faith by attempting to take the most efficient route. CITATION
How about attempting to take the most lawfully correct route?
Zarallo seemed defiant about the position of Josh Shapiro’s office:
- “This case is a procedural mess,” Zarallo said. “The Commonwealth is attempting to do things in a manner that is simple, efficient and doesn’t drag things out.” CITATION
In short, Zarallo is now implying that neither of the presiding judges are “efficient,” and that they all intend to “drag things out.” Let me politely remind these Attorneys that they are outranked by the exact same Judges they intend to circumvent.
The title Attorney General does not, contrary to what Josh thinks, give you the authority to invent new laws or new rules of criminal procedure.
Frankly, if I were a sitting Judge on the Court of Common Pleas, within Centre County MDJ courts, or on the Pennsylvania Superior Court, this bald faced sort of entitlement and lack of respect for the rules would irritate me.
- Theodore Simon, Luke Visser’s attorney, said the Commonwealth is the one who created the procedural mess and called it “chutzpah.” CITATION
A clearly seasoned criminal defense attorney, this ridiculous appeal by the OAG must have annoyed Mr. Simon as well.
And it seemed to annoy President Judge Ruest, who said:
- “I will let you know on this,” Ruest said. “We need to get this case moving.” CITATION
That’s an understatement of the year.
Josh Shapiro is not special, he must abide by the rules just like any other attorney for or within this commonwealth.
His lack of an ability to follow the rules truly shows his unkempt sense of reckless entitlement and overwrought sense of self importance, as well as his very keen inexperience in criminal courts.
What a true and epic embarrassing disgrace! In their efforts to “expedite” this case, they have only managed to drag out these stupid proceedings further.