¶1concurring:
¶2I concur in the majority’s opinion.
¶3Given the fact that no preliminary hearing was held, and given this Court’s recognition that both the letter and the spirit of the Rules of Civil Procedure were violated, I join the majority’s holding that discharge from “custody” was the proper remedy to afford appellants on their habeas corpus petition. In violation of the guarantees embodied in Rules 140 and 142, appellants were not provided a preliminary hearing thirty-nine days after arrest, nor were they given valid reasons for the grant of the continuances. Moreover, they were prejudiced by the fact that they remained incarcerated for more than thirty-nine days, from April 29 through May 31, because of their inability to meet the bail originally set.
¶4I write separately, however, to stress that even had petitioners been released on bail, the writ should have been issued. Our courts have consistently held that the writ of habeas corpus may be used to test the legality of custody. See Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Our courts have also found that a petitioner bound over for court and released on bail remains in “custody,” satisfying the requirements of a habeas corpus petition. Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, cert. denied, 442 U.S. 918, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1979). Petitioners released on bail are subject to conditions and restrictions which restrain their freedom and which are not shared by the public generally.
¶5However, I note that the grant of a writ of habeas corpus will not enable petitioners to evade the serious charges leveled against them. Whether a petitioner is released on bail, or incarcerated, the granting of the writ allows the petitioner to be discharged from custody, but not from the charges. Thus, discharge by means of the writ is “not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 208 (1975); see also Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973); 39 Am.Jur.2d § 161.
¶6. In Commonwealth v. Wansley, 248 Pa.Super. 234, 375 A.2d 73 (1977), the petitioner seeking habeas corpus relief was incarcerated for fifty-six days and had never been afforded his preliminary hearing. On appeal, this Court held that it was error for the lower court to deny the petition for writ of habeas corpus; the Court based its reasoning on the fact that 1) petitioner was prejudiced by being incarcerated, and not free on bail, as of the date of the denial of the writ and that 2) the duration of the noncompliance with Rule 140, fifty-six days, was substantial. Wansley, 248 Pa.Superior Ct. at 238-239, 375 A.2d 73. By comparison, in Commonwealth v. DeCosey, 246 Pa.Super. 412, 371 A.2d 905 (1977), this Court held that a four day delay in scheduling the preliminary hearing was not so prejudicial that the writ should issue.