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COMMONWEALTH v. FUDEMAN (06/11/58)

June 11, 1958

COMMONWEALTH
v.
FUDEMAN, APPELLANT.



Appeal, No. 219, Oct. T., 1958, from order of Court of Oyer and Terminer and Quarter Sessions of Berks County, March T., 1958, No. 39, in case of Commonwealth of Pennsylvania v. Alexander Fudeman. Appeal quashed.

COUNSEL

Jacob Kossman, with him Samuel R. Liever, for appellant.

Victor Wright, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

[ 186 Pa. Super. Page 548]

OPINION PER CURIAM

AND Now, June 11, 1958, after argument on motion to quash appeal and answer thereto, the motion to quash is granted, and appeal No. 219 October Term, 1958, is quashed for the reason that the order of the Court of Quarter Sessions of Berks County dismissing defendant's petition to quash indictment from which said appeal has been taken is interlocutory and, under the circumstances, is not an appealable order. "Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial Court, the Court's order is interlocutory and hence, not appealable." Commonwealth v. O'Brien, 389 Pa. 109.

ING OPINION BY GUNTHER, J.:

I find it necessary to dissent from the order of the Court and the reason therein expressed. When illegal, unconstitutional and unwarranted appendages and

[ 186 Pa. Super. Page 549]

    practices are sanctioned to the time honored, orderly processes and functions of a grand jury, and highhanded procedures cannot be challenged before an accused is forced to an expensive trial and possible conviction, the processes of the law are, indeed, in a deplorable state of disrepair. But I am not willing to concede this, nor am I willing to hide behind the cloak of interlocutory appeals when basic and fundamental rights of a citizen are to be safeguarded.

On November 13, 1957, a complaint was lodged against appellant, Alexander Fudeman, by the Pennsylvania State Police, charging him with unlawfully intimidating and extorting money. On November 15 and December 4, 1957, hearings on this charge were held by the Honorable WARREN K. HESS, sitting as a committing magistrate, and, at the conclusion of said hearings, appellant was held for the March 1958 grand jury. On January 15, 1958, the District Attorney of Berks County, together with a Deputy Attorney General, petitioned the court below to summon the December, 1957 grand jury prior to the convening of the March, 1958 grand jury. This grand jury was discharged on November 29, 1957.*fn1 Immediately upon presentation of said petition, an order was entered to convene said December grand jury for January 24, 1958.

Prior to the convening of the grand jury, certain of its members had unauthorized communications and contacts with each other in connection with this and other cases arising out of the same set of circumstances

[ 186 Pa. Super. Page 550]

    and the Commonwealth frankly concedes that an officer of the Pennsylvania State Police interviewed at least one of the grand jurors. On January 24, 1958, the December grand jury convened. The same foreman was appointed and the jury was re-sworn. Prior to the swearing in, however, counsel for the Commonwealth, in the absence of the accused or his counsel, questioned the grand jury relative to the contacts made one with another but without pressing his inquiry too far. The same day, the case of the appellant was presented and a true bill was returned and marked as if found on March 24, 1958. This was later corrected by the court below to January 24, 1958. This bill was signed by Thomas D. McBride, Attorney General, and not by the District Attorney of Berks County.

On January 27, 1958, a petition to quash the indictment was filed, alleging, inter alia, that the indictment was found at a different term from the one to which it was directed; that no notice was given to the accused or his counsel and, therefore, no opportunity was given to challenge the array; that the accused's constitutional rights were violated in that members of the grand jury had certain communications and contacts with each other prior to deliberations, and that a state policeman contacted the grand jury and interviewed at least one of them, which action was harmful and deprived him of a fair and impartial hearing; that had he known these matters, he would have challenged the array. A rule ...


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