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decided: November 11, 1971.


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.


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 exercised prior to the presentation of the case

[ 220 Pa. Super. Page 108]

    to the grand jury, "'would be meaningless unless the defendant or his counsel could learn of the occasion for its assertion.' Failure to notify the accused or his counsel that his case will be presented to a grand jury other than that to which he was handed over violates fundamental notions of due process. . . . It is clear that under Rule 203, failure to notify the accused when his case is being presented to a later Grand Jury emasculates the right of challenge." 429 Pa. at 26-27, 239 A.2d at 298.

The Commonwealth seeks to distinguish Collemacine on a number of grounds.


The Commonwealth first contends that Collemacine does not apply to the instant case because the magistrate at Collemacine's preliminary hearing stated that the defendant would be bound over "to answer at the next term of" Court. Here, the appellant was told that he was being held for court.

Under either circumstance, however, error was committed. In Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970) which was filed subsequent to the lower court's ruling on post trial motions in the instant case, the Supreme Court clearly delineated the scope of Collemacine : "We held in Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), that a defendant is entitled to notice of presentment of his case to the grand jury if the presentment is to a grand jury other than the next term after the defendant's preliminary hearing. The purpose of this rule is to enable the defendant to avail himself of his right to challenge the array of grand jurors." 440 Pa. at 353, 269 A.2d at 757-758.

As the appellant in the instant case was not indicted by the grand jury sitting in the next term after

[ 220 Pa. Super. Page 109]

    his preliminary hearing, and he never received notice which subsequent grand jury would indict him, Johnson requires that this Court quash the indictments returned.*fn1

Further, the judge at appellant's preliminary hearing misled appellant by only informing him that he was held for court. The phrase "held for court" is commonly taken to mean in Philadelphia County that the defendant would be indicted in the next term of court. This is the procedure used in the overwhelming majority of criminal prosecutions in Philadelphia County. Indeed, at the time that appellant's preliminary hearing was held, it was standard practice in Philadelphia County for the judge at a preliminary hearing to forward cases held for court to the Grand Jury as soon as possible after the preliminary hearing.*fn2


The Commonwealth also contends that appellant has waived his right to bring a pre-trial motion to quash on Collemacine grounds. Appellant's preliminary hearing was held on April 23, 1965. In November, 1966, appellant filed a motion to quash the indictment on non- Collemacine grounds, and this motion was denied

[ 220 Pa. Super. Page 110]

    after hearing on February 26, 1968. Subsequently, on April 22, 1968, a second motion to quash was filed, this time attacking the indictments on Collemacine grounds. The lower court did not find that this petition was dilatory or otherwise improper, but instead, it entertained the motion and decided it on the merits. Notwithstanding, the Commonwealth argues in this appeal that under Commonwealth v. Haines, 57 Pa. Superior Ct. 616 (1914), appellant was obligated to consolidate all his grounds for quashing the indictments in his first motion to quash. As a general rule, this, of course, would be true, but, in the instant case, at the time of appellant's first motion to quash, Collemacine had not yet been decided. Further, at the time that the second motion to quash was filed, which was based on Collemacine, the Collemacine opinion had been handed down only five weeks previously and had only been circulated in mimeograph copy to judges and district attorneys in Pennsylvania and to private attorneys upon request. The Collemacine opinion was not even published in the advance sheets until two weeks after appellant had filed his Collemacine based motion to quash. Accordingly, absent any finding of capriciousness by the trial court or on the part of appellant or his attorney, it would be difficult to find any deliberate bypass of the Collemacine issue in the bringing of appellant's first motion to quash.

Alternatively, the Commonwealth argues that even had appellant not been informed of Collemacine, he should have argued the issue decided therein, as Collemacine was a restatement of prior law. As authority for this, the Commonwealth cites the opinion of the lower court in Collemacine, as supporting the granting of the motion to quash. In that opinion, the learned lower court stated that an indictment should be quashed if found at a term later than the one for appearance. As authority for this statement the lower court cited

[ 220 Pa. Super. Page 111]

    only one Pennsylvania appellate case. Commonwealth v. Gross, supra, which in turn relied upon Commonwealth v. Weiner, 101 Pa. Superior Ct. 295 (1930). In both Gross and Weiner, however, our Court stated that the right to challenge the array of the grand jury could be exercised after the indictments had been returned and at any time until the defendant entered a plea. This is directly contrary to Pennsylvania Rule of Criminal Procedure 203 which now requires such challenge to be made before the case is submitted to the Grand Jury. Thus, had appellant had the benefit of the research alluded to by the Commonwealth, he would have been completely misled. It should also be noted that the Commonwealth's unsuccessful appeal from the decision of the trial court to the Supreme Court in Collemacine indicates that the Commonwealth thought that the lower court's decision was a mistaken interpretation of prior law.

Accordingly, we vacate the judgment of sentence below and order that the indictments against appellant be quashed.*fn3


Judgment of sentence vacated and indictments quashed.

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