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COMMONWEALTH v. DIAZ (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
DIAZ, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1974, Nos. 500 to 504, inclusive, in case of Commonwealth of Pennsylvania v. Anibal Diaz.

COUNSEL

John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Marianne E. Cox, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 235 Pa. Super. Page 353]

Appeal is taken to this Court from denial of appellant's motion to dismiss indictment and pursuant to certification of the case to us by the lower court and our allowance of this interlocutory appeal.

The facts are that appellant appeared before Judge Thomas Shiomos, sitting in the Philadelphia Municipal Court, on April 18, 1974, for a preliminary hearing upon charges of attempted rape, kidnapping, indecent assault, terroristic threats, and simple assault.*fn1 He purported to enter a plea of guilty to attempted rape to a bill of indictment by signing his name after the following words written

[ 235 Pa. Super. Page 354]

    upon the magistrate's transcript: "Preliminary Hearing and Grand Jury waived (plea negotiated) defendant plead guilty to attempted rape." The judge thereupon sentenced him to five years probation. At said preliminary hearing, there of course had not yet been written any bill of indictment, although there is mention of appellant's desire to waive presentment of indictment to the grand jury. On application of the Commonwealth the judge discharged appellant as to the charges other than attempted rape.

Shortly thereafter it appeared to Judge Shiomos that the court lacked jurisdiction to accept a guilty plea and impose sentence. On April 22, 1974, a new complaint was made before Judge Shiomos and he issued a warrant for the re-arrest of appellant. On or about April 23, 1974, appellant appealed from the judgment of sentence to our Court;*fn2 he also filed a habeas corpus petition to the Philadelphia County Common Pleas Court. On April 24, 1974, Judge Shiomos vacated the guilty plea and the sentence of April 18, 1974. On April 29, 1974, appellant moved the lower court to dismiss the complaint and quash the re-arrest warrant; these were denied. On June 10, 1974, appellant was indicted for the crimes above stated. On September 23, 1974, appellant moved to suppress testimony and to dismiss the indictment. It is Judge Lisa Richette's denial of appellant's motion to dismiss the indictments which is the subject of this appeal.

The sole question which we will consider is appellant's argument that his entry of a guilty plea, and its acceptance by the court, precludes later prosecution for the same offense. Appellant's position brings into question the issue of jurisdiction existing in the lower court at the time of entry of the guilty plea. Therefore, we shall first examine

[ 235 Pa. Super. Page 355]

    the function of a grand jury indictment and a defendant's privilege to waive it, and ...


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