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COMMONWEALTH v. KOHR (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
KOHR, APPELLANT



Appeal from order of Court of Common Pleas of Lebanon County, No. 247 of 1968, in case of Commonwealth of Pennsylvania v. Edwin David Kohr.

COUNSEL

Joel M. Breitstein, for appellant.

David J. Brightbill, Assistant District Attorney, and George E. Christianson, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.

Author: Watkins

[ 228 Pa. Super. Page 197]

This case involves an appeal from an order of the Court of Common Pleas of Lebanon County dismissing the appellant's request for relief under the Pennsylvania Post Conviction Hearing Act of 1966, January 25, P. L. 1580, Section 1 et seq., 19 P.S. § 1180-1 et seq.

Appellant, Edwin David Kohr, was arrested on July 19, 1968 and charged with rape, assault and battery, assault with intent to ravish and sodomy. A preliminary hearing on the above charges was held on July 23, 1968, and the defendant was bound over for the next term of the grand jury. On August 8, 1968, upon his attorney's petition, the appellant was committed to Fairview State Hospital under Section 408 of the Mental Health and Retardation Act of 1966, 50 P.S. § 4408. The defendant's case was not submitted to the August grand jury but it was submitted to the subsequent grand jury and on November 25, 1968, while the defendant was a patient at Fairview, the grand jury returned a true bill against him. He was released in September, 1970. On September 14, 1970, the defendant was convicted by a jury on all counts and was sentenced

[ 228 Pa. Super. Page 198]

    to five to fifteen years in a state correctional institution. He is presently released on parole. Post trial motions filed by the defendant were denied by the Lebanon County Court, sitting en banc. This decision was affirmed by the Superior Court in a Per Curiam opinion dated May 20, 1971. Commonwealth v. Kohr, 218 Pa. Superior Ct. 843, 279 A.2d 195 (1971). The Supreme Court refused allocatur. The question here involved was not raised.

On May 13, 1973, appellant filed a petition for relief under the Pennsylvania Post Conviction Hearing Act, supra, alleging incompetency of counsel and the abridgement of a right guaranteed by the Constitution of Pennsylvania or by the Constitution of the United States. On July 27, 1973 a hearing was held and on January 4, 1974 the court below authored an opinion denying the relief requested. Defendant is now appealing the denial of the relief requested in his Post Conviction Hearing Act petition.

The only issue of substance on this appeal involves defendant's contention that he has been denied his right to challenge the array of the grand jury because he was a patient at a mental hospital where he had been committed by the court under Section 408 of the Mental Health and Retardation Act of 1966 at the time of his indictment.

Rule 203 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, grants a defendant the right to challenge the array of the grand jury or to challenge an individual grand juror. This right was meant to be exercised before the bill of indictment is presented to the grand jury. In Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968), the court affirmed a ruling by the trial court which granted defendant's motion to quash an indictment ...


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