Appeal from order of Superior Court, April T., 1972, No. 40, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1970, No. 8003, in case of Commonwealth of Pennsylvania v. Wiley Jones, alias Charles Daye.
John H. Corbett, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones dissents.
The appellant, Wiley Jones (alias Charles Daye), was convicted of burglary and assault and battery. Post-trial motions were denied. He was sentenced to a term of not less than two nor more than four years imprisonment on the burglary conviction. Sentence was suspended on the assault and battery conviction. On appeal the Superior Court affirmed the judgment of sentence. Commonwealth v. Jones, 221 Pa. Superior Ct. 818,
A.2d 912 (1972). Appellant's petition for an allowance of appeal to this Court was granted.
Appellant assigns as error the trial court's denial of his pretrial motion to quash the indictment. According to the appellant, the motion should have been granted since he did not receive notice that his case was being submitted to a grand jury other than the grand jury for the next term of court following appellant's preliminary hearing. Appellant claims that the lack of notice deprived him of his constitutional right to challenge the array of the grand jury or any of the individual grand jurors for cause. We agree. Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), held that such notice was required. "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." Id. at 27, 239 A.2d at 298. See also Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966); Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970); Pa. R. Crim. P. 203.
The prosecution does not dispute the appellant's claim that he was entitled to notice, but argues that the record establishes that the appellant received the required notice. We must conclude, however, that the appellant did not receive the required notice and, thus, was deprived of the opportunity to exercise his constitutional rights. There is no dispute that the only evidence which contradicted appellant's claim that he did not receive notice was a copy of a notice allegedly mailed to the appellant. Although the copy was addressed properly and dated, there was no evidence that the original notice or another copy was ever mailed to the appellant. There was no evidence that the notice was deposited in the United States mail system. There was no evidence of a regular and customary procedure from which it might be inferred that the notice was
mailed in the regular course of business. Under the circumstances, the trial court improperly concluded that the required notice had been given to the appellant.
In Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970), we said that a red checkmark on the indictment paper indicating that the defendant had been properly notified was not sufficient evidence to establish the mailing of the required notification. In Johnson, we said that "the district attorney must establish some other procedure to lend an air of certainty to the giving of notice. Otherwise, it will be very difficult for a reviewing court to be sure that a defendant has been granted his constitutional right to challenge the array of the grand jury. . . ." Id. at 353, 269 A.2d at 758. Like the red checkmark in Johnson, the evidence in this case fails to lend an air of certainty to the giving of the ...