Appeal from orders of Court of Quarter Sessions of Montgomery County, Sept. T., 1964, No. 201, in case of Commonwealth of Pennsylvania v. Ronald S. Smith.
Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker, Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth.
Norman Ashton Klinger, for defendant.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.
[ 212 Pa. Super. Page 404]
Defendant was arrested in 1964 and charged with assault and battery with intent to ravish and indecent assault. With counsel he waived indictment, pled guilty
[ 212 Pa. Super. Page 405]
and was sentenced to 2 1/2 -5 years. After exhausting state post-conviction remedies, defendant was granted a hearing before Judge Luongo of the Federal District Court, Eastern District of Pennsylvania. From the evidence presented Judge Luongo was convinced that due to defendant's mental condition, he had not entered a knowing and intelligent guilty plea. Therefore, on April 3, 1967, that court ordered defendant's release but deferred issuing the writ so that the Commonwealth might appeal, or retry defendant. Defendant was released on bail and the case was listed for retrial on the old bill of indictment, No. 201 September Term, 1964. Prior to trial defense counsel filed a number of motions. On September 12, 1967, a new indictment (No. 1187, 1967) for the same offense was found by the grand jury which defendant then moved to quash. After hearing and argument the Honorable Robert W. Honeyman heard and disposed of all the pending pretrial motions by orders dated October 16 and 23, 1967.
The Commonwealth has appealed from the order of the lower court suppressing certain evidence and defendant has also appealed from the lower court's refusal to set aside the magistrate's commitment or to quash the indictment.
The Commonwealth's appeal is improper in light of the standard set forth in Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Bosurgi and subsequent cases have permitted the Commonwealth to appeal pretrial suppression orders whenever such orders will "substantially handicap" the Commonwealth; whenever "The evidence suppressed may well mark the difference between success and failure in the prosecution. . . ." 411 Pa. at 63, 190 A.2d at 308. See also
[ 212 Pa. Super. Page 406]
together with his recognizance and was released from custody. His application to set aside the commitment was filed June 12, 1967. After bail has been given neither the validity of an arrest nor the legality of proceedings before a magistrate may be questioned on a petition to discharge the defendant from his recognizance, and the court properly refused to set aside the commitment. Commonwealth v. Weinstein, ...