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COMMONWEALTH v. ROSENFIELD (11/11/71)

decided: November 11, 1971.

COMMONWEALTH
v.
ROSENFIELD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1965, No. 554, in case of Commonwealth of Pennsylvania v. Seymour L. Rosenfield.

COUNSEL

Benjamin R. Donolow and Paul D. Sulman, for appellant.

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

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Jacobs and Spaulding, JJ., would affirm on the opinion of Judge Spaeth below.

Author: Hoffman

[ 220 Pa. Super. Page 106]

This is an appeal from a conviction for perjury.

Appellant contends that the lower court erred by failing to grant his pre-trial motion to quash the indictments

[ 220 Pa. Super. Page 107]

    against him. This motion was based on the failure of both the Commonwealth and the judge at the preliminary hearing to inform appellant or his counsel when appellant's case was to be submitted to the Grand Jury. Appellant, therefore, was unable to scrutinize and challenge the array of the specific grand jury which indicted him or any specific grand juror.

Appellant argues that the judge presiding at the preliminary hearing led him to believe that he would be indicted by the grand jury sitting in the next term of court. At the conclusion of appellant's preliminary hearing on April 23, 1965, the presiding judge stated to appellant in the presence of his attorney that "they [appellant and a co-defendant] are held for court, the same bail, on the same charges, and we will adjourn." Subsequently, appellant was not indicted by the May, June or July Grand Juries, but without notice was indicted by the August, 1965, Grand Jury.

In Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968) the Court considered for the first time the inter-relationship between the constitutional principle that an accused has the right to challenge the array of Grand Jury or any individual grand juror and Rule 203 of the Pennsylvania Rules of Criminal Procedure which requires that any such challenge be made before the bill of indictment is submitted to the Grand Jury.

Defendant Collemacine was informed at the conclusion of his preliminary hearing that he would be bound over without bail "to answer at the next term of" court. The next term of Court was in August, but Collemacine was not indicted until October, and then without prior notice.

The Court quashed the indictment on the basis that the right to challenge the array of the grand jury and any individual grand juror, which under Rule 203 must be ...


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