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COMMONWEALTH PENNSYLVANIA v. IRVING WASSERMAN (03/17/76)

decided: March 17, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
IRVING WASSERMAN, APPELLANT



COUNSEL

Louis Lipschitz, Lipschitz & Danella, David Kairys, David Rudovsky, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Eagen

[ 466 Pa. Page 433]

OPINION OF THE COURT

On June 17, 1971, Irving Wasserman was arrested in Philadelphia and charged with four counts of receiving stolen goods on that day. On August 13, 1971, a preliminary hearing was held and Wasserman was held for action by the grand jury then in session and was so notified. Prior to presentment to the grand jury, a determination was made that the crimes were within the jurisdiction of the Municipal Court and thus the charges were

[ 466 Pa. Page 434]

    listed for trial in that court without being submitted to the grand jury.

Trial was first listed in the Municipal Court for November 29, 1971. Defense counsel requested a continuance and trial was rescheduled for February 18, 1972. Again defense counsel requested a continuance and trial was rescheduled for May 1, 1972. On April 25, 1972, Wasserman filed a motion to suppress certain evidence. The suppression hearing was scheduled for May 1, 1972, but was continued because defense counsel was involved in another trial. On August 7, 1972, a suppression hearing was held and the motion denied. Trial was then scheduled for September 20, 1972, but again continued to December 20, 1972, on the joint motion of the Commonwealth and defense counsel. The December 20, 1972 listing was later continued to February 16, 1973, because defense counsel was on vacation. On February 16, 1973, a continuance was granted because of the unavailability of a Commonwealth's witness. Trial was then scheduled for April 26, 1973, when defense counsel again requested a continuance. Trial was then scheduled for May 29, 1973. Another continuance was granted and trial was then scheduled for June 15, 1973. Defense counsel then informed the Commonwealth that he would be engaged in federal court on that date.

Since the statute of limitations*fn1 applicable was due to expire on June 17, 1973, the Commonwealth on June 15,

[ 466 Pa. Page 4351973]

, without notice to Wasserman petitioned the Court of Common Pleas for leave to present bills of indictment to the grand jury then in session, pursuant to Pa.R.Crim.P. 224.*fn2 The petition was granted and without any notice to Wasserman the charges were presented to the grand jury and indictments were returned.

Subsequently, upon motion of Wasserman the indictments were quashed by the Court of Common Pleas because Wasserman had not been given notice of the presentment of the charges to the grand jury. The Commonwealth filed an appeal in the Superior Court which in a four to three decision reversed the order of the ...


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