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COMMONWEALTH v. WASSERMAN (06/21/74)

decided: June 21, 1974.

COMMONWEALTH, APPELLANT,
v.
WASSERMAN



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1973, Nos. 774-777, in case of Commonwealth of Pennsylvania v. Irving Wasserman.

COUNSEL

David Richman, Assistant District Attorney, with him Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

Joseph Danella, with him Louis Lipschitz, and Lipschitz and Danella, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Hoffman, J. Jacobs and Spaeth, JJ., join in this dissenting opinion.

Author: Van Der Voort

[ 229 Pa. Super. Page 406]

Four Bills of Indictment presented to the Grand Jury by special leave of Court were quashed upon the claim by the Defendant that he was deprived of his constitutional right to a reasonable opportunity to challenge the array or an individual member of the Grand Jury. The Commonwealth has appealed. The Defendant was indicted on four counts of receiving stolen goods involving 22 separate items of property allegedly stolen and discovered at the Defendant's residence in the City of Philadelphia pursuant to a search warrant.

The offenses were alleged to have occurred on June 17, 1971. A complaint was prepared and at the preliminary hearing on August 13, 1971 the Defendant was held for action of the Grand Jury. Before submission to the Grand Jury it was determined that the case was properly within the jurisdiction of the Municipal

[ 229 Pa. Super. Page 407]

Court of Philadelphia and the case was consequently listed for trial in that court.

It was listed for trial seven times. It was postponed at the request of the Defendant four of these times, once at the request of the Commonwealth and once upon the joint application of the Commonwealth and the Defendant. An additional suppression hearing was scheduled and continued for a period of three months on motion of the Defendant. The last time the case was scheduled for trial was on June 15, 1973, when Defense counsel informed the Court that he was engaged in a trial in Federal Court and would be unable to try the case.

The Commonwealth then petitioned the Court of Common Pleas for leave to present Bills of Indictment to the 1973 term of the Grand Jury. The Court granted leave to thus submit the Bills of Indictment and they were returned by the June Grand Jury just before the running of the two year statute of limitations which expired on June 17, 1973.

The Defendant complains that the Court of Common Pleas could not grant leave to the Commonwealth to present the Bills of Indictment to the Grand Jury in the manner in which it was done because Rule 224 of the Pa. Crim. R. does not apply to cases in which there was a preliminary hearing and that the Order of the Court deprived him of his reasonable opportunity to challenge the Grand Jury and/or an individual Grand Juror or individual Grand Jurors. Rules of procedure do not cover every circumstance. It is impossible that such rules deal with every conceivable situation. There is neither time nor space to make rules or regulations which would do this and it is impossible for the draftsmen of rules of procedure to ...


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