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COMMONWEALTH v. BURGESS (03/20/72)

decided: March 20, 1972.

COMMONWEALTH
v.
BURGESS, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1966, No. 4972, in case of Commonwealth of Pennsylvania v. John Burgess.

COUNSEL

William Killeen, with him Kenneth S. Harris, for appellant.

Judith Dean, Assistant District Attorney, with her 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, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: O'brien

[ 446 Pa. Page 385]

On April 3, 1966, in the early morning, three men crept into the home which a fourteen-year-old girl shared with her mother and her seventy-nine-year-old grandmother. The three men brutally attacked and raped the two younger women and viciously beat the older woman. They then took a few possessions, including a table radio and some jewelry, and fled.

The young girl managed to call from a window to a late-returning neighbor, who telephoned the police. When the police arrived at the scene, the grandmother was lying on the floor in the kitchen in a badly battered condition, with multiple lacerations on her head, six fractured ribs, and multiple hemorrhages of her brain. She died nineteen days later as a result of the beating. Appellant and one of his companions were picked up three blocks away walking with the radio and some other stolen objects. The third man was arrested subsequently. All three were originally charged with burglary, robbery, rape and conspiracy, but when the older woman died, the three men were also indicted for murder.

When appellant came to trial, separately, on August 22, 1966, he pleaded guilty to murder generally. A three-judge panel then found him guilty of murder in the first degree and sentenced him to death.

[ 446 Pa. Page 386]

After a series of proceedings which need not concern us, a hearing was held on appellant's motion for new trial on the grounds that a city technician, Agnes Mallatratt, gave perjured testimony, and on appellant's petition to file, nunc pro tunc, a motion to quash the indictment. The three-judge panel denied appellant's motion and petition. From this ruling appellant now appeals.

Appellant first contends that he was denied the right to challenge the array of the grand jury which indicted him, as is required by Rule 203 of the Pennsylvania Rules of Criminal Procedure. He bases this contention on our decision in Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), and on the fact that the grand jury which indicted him was sworn prior to the day he was arrested for murder, thus depriving him of the right to challenge the array of that grand jury.

However, in Dessus, which involved one of appellant's co-felons, who was indicted on the same day as appellant, the defendant, Ronald J. Dessus, moved to quash his indictment on August 16, 1966, before he went to trial. Here, appellant proceeded to trial on that indictment on a plea of guilty, making no objection of any kind to the indictment until March, 1967, nearly seven months after trial. Our rule in Dessus, in which we gave a liberal interpretation to Rule 203, was enunciated "in order to preserve, if promptly exercised, [a defendant's] legal and constitutional right to challenge the grand jury array." (Emphasis supplied.) Here, where appellant waited until seven months after trial to attempt to exercise his rights, we believe those ...


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