This is a case where the district justice determined there was not a prima facie case for a DUI under 3802(a)(4) (of the old DUI statute), but there was for subsection (a)(1). When it went to the Court of Common Pleas, the DA filed the criminal charges with the (a)(4) section back in. The defendant put up a big fight, insisting that the charge of (a)(4) should be refiled against him so he can have another opportunity at the preliminary hearing. The Commonwealth argued that it added the (a)(4) back in on grounds that, since the offenses were cognate, both could be charged in the information based upon the finding that prima facie evidence existed to prosecute appellant generally for driving while under the influence of alcohol.
The Commonwealth argued that Pa.R.Crim.P. 225(b) (5) does not require that the crime charged in the information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint. Remember -- An offense is either cognate to another offense at the time the criminal conduct takes place or it is not.
The Superior Court concluded that the Commonwealth was not required to re-arrest appellant on the charge of violating 75 Pa.C.S. § (a) (4) and again take that charge before a district justice for a determination of the existence of prima facie evidence. The court further cited Commonwealth v. Epps, which stated,
"At the preliminary hearing, the magistrate, at the request of defense counsel, and on the basis of no evidence indicating a taking of money, substituted a charge of attempted robbery for the original robbery charge. Nevertheless, the grand jury returned an indictment of robbery against defendant. Defendant was ultimately convicted of both charges. On appeal, defendant contended that he was denied effective assistance of counsel because his counsel failed to quash the indictment for robbery. The court affirmed defendant's convictions, finding that it was clear that the crime charged in the indictment, robbery, was cognate to, and identical with, the charge imposed at the preliminary hearing, attempted robbery. The court further found that the actions of the grand jury were not improper in returning an indictment of robbery. Moreover, it was difficult for the court to perceive how defendant's due process rights were infringed by such a procedure. Finally, the court found that because the indictment was not improper, counsel's attempt to quash would have been futile". Commonwealth v. Epps, 260 Pa. Super. 57 (Pa. Super. Ct. 1978)
This is a tough case to swallow for your Lehigh County criminal lawyer and one that they should know to fight. Essentially, given this case, which is limited in future treatment but still has been favorably cited, they have to beat the whole DUI at the preliminary hearing.