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COMMONWEALTH v. CARDONICK ET AL. (06/28/72)

decided: June 28, 1972.

COMMONWEALTH
v.
CARDONICK ET AL., APPELLANTS



Appeals from order of Superior Court, Oct. T., 1970, Nos. 765 to 807, inclusive, affirming the judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, Nos. 1766 to 1808, inclusive in case of Commonwealth of Pennsylvania v. Leon Cardonick, Frank Toughill and Brucker and Boghien, Inc.

COUNSEL

Arnold Glaberson and Maier Segal, with them Rome and Glaberson, Ltd., for appellants.

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

Cecil B. Moore, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 448 Pa. Page 324]

This consolidated appeal requires us to decide whether the return of indictments, subsequently quashed because of the failure to notify defendants which grand jury would consider the bills of indictment,*fn1 tolled the statute of limitations.*fn2 We conclude that the quashed indictments failed to toll the statute of limitations and the later bills, submitted and returned after the time period provided by the statute of limitations,*fn3 were

[ 448 Pa. Page 325]

    properly quashed in No. 327, Commonwealth v. Canada,*fn4 and should have been quashed in Nos. 325-26, Commonwealth v. Cardonick et al. The facts of the two appeals are as follows:

Nos. 325-26

Appellants, Leon Cardonick and Frank Toughill, were charged with numerous counts of forging cigarette tax stamps for tax evasion purposes, in violation of the Cigarette Tax Act, Act of July 8, 1957, P. L. 594, §§ 101 et seq., 72 P.S. §§ 3168-101 et seq.*fn5 and the Act of June 24, 1939, P. L. 872, § 328, as amended, 18 P.S. § 4328.*fn6 The alleged criminal acts occurred between February 9, 1965, and January 26, 1966. The preliminary

[ 448 Pa. Page 326]

    hearing on these charges was held on April 4, 1967, and appellants were bound over for the grand jury.

The bills of indictment on these charges were presented to the July grand jury and indictments were returned on July 18, 1967. Appellants, however, were not notified that the bills of indictment would be presented to the July rather than the May or June grand juries.*fn7

Appellants therefore moved to quash the indictments on the ground of lack of notice and the motion was granted on June 7, 1968. In order to exercise the constitutional right to challenge the "array of the grand jury or an individual juror", it is necessary to raise the challenge "before the grand jurors are sworn". Pa. R. Crim. P. 203; see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966). Without advance notice of the specific grand jury which will consider the bills of indictment, it is of course impossible to satisfy Rule 203's requirement of advance challenge to the array. In Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), we affirmed the quashing of the indictments because of the failure to notify the defendant that the bill of indictment would be presented to a later grand jury than the one "to which he was handed over. . . ." Id. at 27, 239 A.2d at 298.

The Commonwealth then gave appellants notice that the bills of indictment were to be re-submitted to the July 1968 grand jury. Appellants secured a rule to show cause why the attempt to re-indict them should not be barred by the statute of limitations. Appellants were charged with misdemeanors and summary offenses and the applicable statute of limitations is two years.*fn8

[ 448 Pa. Page 327]

The last alleged act occurred on January 26, 1966, more than two years before the re-submission of the bills of indictment in July, 1968. Relief was denied and on July 30, 1968, ...


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