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COMMONWEALTH v. CANADA (09/21/71)

decided: September 21, 1971.

COMMONWEALTH, APPELLANT,
v.
CANADA



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 35 to 38, inclusive, in case of Commonwealth of Pennsylvania v. Wilson Canada.

COUNSEL

Joseph D. Grano, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Cecil B. Moore, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins, and Jacobs, JJ., dissent.

Author: Hoffman

[ 219 Pa. Super. Page 408]

On August 3, 1967, appellee was indicted for offenses committed on March 14, 1967, on Bills Nos. 2772-2775, July Term, 1967. These indictments were, however, quashed by the Court of Common Pleas on October 27, 1969, on the authority of Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), in that neither appellee nor his counsel received prior notice that appellee's case would be presented to the grand jury which subsequently indicted him.

On February 4, 1970, appellee was reindicted for the above mentioned charges at Bills Nos. 35-38, February Term, 1970. On June 18, 1970, appellee, prior to the commencement of trial, pleaded the statute of limitations and moved to quash the indictments. The motion was granted and the Commonwealth appealed.

[ 219 Pa. Super. Page 409]

Both parties agree that the issue in this case is whether the running of the statute of limitations was tolled from the return of the bills of indictment in August 1967, until they were quashed in October 1969. If there was no such tolling the Commonwealth cannot now proceed since the Act of March 31, 1860, P. L. 427, § 77, as amended, 19 P.S. § 211, provides that the prosecution for the offenses charged in the instant case must be brought within two years of their commission.

It has long been the law of this Commonwealth that if a bill of indictment is found more than two years after the commission of the type of offense charged in the instant case, and the defendant has been a usual resident of Pennsylvania throughout that time, the bills may be quashed. Commonwealth v. Cody, 191 Pa. Superior Ct. 354, 156 A.2d 620 (1959), Commonwealth v. Werner, 5 Pa. Superior Ct. 249 (1897) and cases cited therein.

The Commonwealth in the instant case, however, seeks to avoid the above rule by relying upon Commonwealth v. Howard, 210 Pa. Superior Ct. 284, 232 A.2d 207 (1967) and Commonwealth v. Smith, 212 Pa. Superior Ct. 403, 244 A.2d 787 (1968), which relied upon Howard for the proposition that the return of original bills of indictment against a defendant tolls the statute of limitations until such bills are quashed. Howard, however, cannot be so broadly read. In Howard the defendant signed a waiver of indictment by the grand jury and entered guilty pleas to four district attorney's bills of indictment. Seven years later he brought a petition for writ of habeas corpus alleging that he did not intelligently and understandingly waive his right to counsel when he plead guilty. The writ was granted and the lower court directed that new indictments covering the seven-year-old charges be presented. When these new indictments were presented the defendant moved to quash them as being defective since they were

[ 219 Pa. Super. Page 410]

    returned after the statute of limitations had run. The lower court refused to quash and ...


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