Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, Nos. 2130, 2131, 2132, 2198 and 2199, in case of Commonwealth of Pennsylvania v. John R. Sills.
James Garrett and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
No appearance entered nor brief submitted for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Hoffman, J., dissents.
[ 237 Pa. Super. Page 282]
The instant appeal by the Commonwealth arises from the order of the court below quashing the indictment of John R. Sills, appellee, because of the Commonwealth's non-compliance with the provisions of Pa. R. Crim. P.
[ 237 Pa. Super. Page 283203]
. The indictment charged appellee with having committed various crimes including obstruction of public justice and conspiracy; aiding and abetting the misfeasance, malfeasance and nonfeasance of a cigarette agent; and perjury, arising from appellee's testimony before a Special Investigating Grand Jury. When the court quashed the indictment on December 5, 1974, the statute of limitations had run on all the offenses, except the perjury charge. Hence, the Commonwealth would not be able to re-indict appellee except for perjury should the order of the court below be affirmed.*fn1 However, we find that the court erred in quashing the indictment and will reverse.
Before explaining the basis for our decision, a description of the tortuous procedure which preceded this appeal may be helpful:
In June of 1972, a special investigating grand jury convened to investigate an alleged cigarette smuggling conspiracy in Philadelphia County. As part of the investigation the grand jury subpoenaed the appellee, John Sills, to testify. Mr. Sills contested the subpoena through a motion to quash, which was denied. After Mr. Sills unsuccessfully appealed the motion to quash the subpoena, he appeared before the investigating grand jury in September of 1973, some fourteen months after being subpoenaed.
Under questioning that day Mr. Sills repeatedly refused to answer on the basis of his Fifth Amendment right against self-incrimination. When a citation for contempt was refused by Judge Takiff, the Commonwealth
[ 237 Pa. Super. Page 284]
decided to seek immunity for Mr. Sills. A petition therefor was filed and endorsed by the Attorney General for the Commonwealth and the District Attorney for Philadelphia County. This time Mr. Sills sought to prevent his testifying by filing a petition for a preliminary injunction with the Commonwealth Court and a petition for a writ of prohibition with the Supreme Court. Those efforts also proved unavailing as the immunity order was granted on November 21, 1973, and Mr. Sills was again ordered to appear before the grand jury. However, Sills promptly appealed that order to this court which, after temporarily staying the order to appear before the grand jury, certified the appeal to our Supreme Court. The Supreme Court quashed the appeal on December 14, 1973, thus affirming the lower court's ordering Sills to testify. By then it had been eighteen months since the investigating grand jury had subpoenaed Sills, and its proceedings were drawing to a close, so that no further opportunity to hear Sills' testimony existed. Accordingly, in its Eleventh Presentment, adopted on December 19-20, 1973, it recommended that Sills be indicted on the charges related to the investigation. On December 20, 1973, in an event widely publicized by the Philadelphia news media, Judge Takiff directed the Commonwealth to submit the presentment to the indicting grand jury. On December 21, 1973, the Commonwealth sent notice to Mr. Sills' suburban residence and the office of Mr. Sills' attorney, Richard G. Phillips, advising them that bills of ...