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COMMONWEALTH v. ROSE (01/30/70)

decided: January 30, 1970.

COMMONWEALTH
v.
ROSE, APPELLANT. COMMONWEALTH EX REL. MAGAZINER, APPELLANT, V. SHERIFF OF PHILADELPHIA COUNTY



Appeal from order of Superior Court, No. 716, Oct. T., 1968, vacating order of Court of Quarter Sessions of Montgomery County, June T., 1967, No. 148, in case of Commonwealth v. Joseph Rose.

COUNSEL

Vincent A. Cirillo, for appellant.

William T. Nicholas, Assistant District Attorney, with him Richard A. Devlin and Stewart J. Greenleaf, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

William T. Coleman, Jr., with him Louis E. Levinthal, Louis M. Natali, Jr., and Dilworth, Paxson, Kalish, Kohn & Levy, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissent.

Author: Cohen

[ 437 Pa. Page 32]

These appeals raise related questions concerning the procedure a common pleas judge must follow when he is acting as a committing magistrate. The facts are as follows:

Rose was tried on June 20, and 21, 1967 before a judge and jury on an indictment charging fornication and bastardy. Rose testified he could not have engaged in intercourse with the prosecutrix at the time of the alleged conception because at that time he was attending a training course with the Army National Guard in Maryland. In rebuttal, the Commonwealth called a National Guard officer who testified that Rose was finally separated from service five months before the date appellant stated he concluded the training course. After the jury's verdict of acquittal, Judge Ditter, at the request of the Assistant District Attorney,

[ 437 Pa. Page 33]

    sat as committing magistrate and held the appellant on a charge of perjury based on his testimony as to his whereabouts during the time in question. No criminal complaint accusing the appellant of perjury was ever issued, and no preliminary hearing was ever held.

On September 8, 1967, the Grand Jury of Montgomery County approved an indictment charging Rose with perjury, and on January 19, 1968 appellant filed a motion to quash the indictment. The court below granted the motion to quash giving as its principal reason the failure to adhere to the Rules of Criminal Procedure in that no complaint was ever issued nor a preliminary hearing ever held. On appeal the Superior Court reversed that order, 214 Pa. Superior Ct. 50, 251 A.2d 815 (1969), holding that a complaint and preliminary arraignment were unnecessary because Rose knew of the specific charges against him and that the court's action itself constituted a preliminary hearing.

Magaziner, a defendant in a minority stockholders' action, was called as a witness upon cross-examination. On April 1, 1969 he was cross-examined as to what had occurred at a shareholders' meeting on January 13, 1969. Counsel for the plaintiffs in that action, Mr. Egnal, read from the transcript of that meeting and asked Magaziner if he, Egnal, had made certain remarks to Magaziner at that meeting. Magaziner said that interchange had never taken place and after repeating this several times suggested that Egnal had been talking to Mr. Katz, the stenographer. At this point the hearing was adjourned, and when it resumed on May 19, Magaziner stated he had heard a tape recording of the meeting and ...


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