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COMMONWEALTH v. MILLHOUSE (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
MILLHOUSE, APPELLANT. COMMONWEALTH, APPELLANT, V. MILLHOUSE



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, Nos. 2126, 2127, 2136 to 2140, inclusive, 2161 to 2164, inclusive, and 2209, in cases of Commonwealth of Pennsylvania v. Andrew Millhouse and Same v. Same.

COUNSEL

Gerald A. Stein, with him Abraham T. Needleman, and Needleman, Needleman, Tabb & Eisman, for appellant at No. 718 and appellee at No. 954.

James Garrett, Assistant District Attorney, with him Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant at No. 954 and appellee at No. 718.

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

Author: Hoffman

[ 239 Pa. Super. Page 447]

The instant case is a consolidation of two appeals. In No. 718, October Term, 1975, certified to this Court pursuant to the Appellate Court Jurisdiction Act,*fn1 the appellant, defendant in the court below, ("appellant" herein), contends that Rule 1100*fn2 requires dismissal of the charges against him. In No. 954, October Term, 1975, the Commonwealth challenges the lower court's decision to quash the indictments against the appellant.*fn3 The

[ 239 Pa. Super. Page 448]

    court found that appellant did not receive timely notice of the presentment of the bills of indictment to the grand jury. Due to our disposition of appellant's Rule 1100 claim, we do not decide appeal No. 954.

Although the factual and procedural history is tortuous, the relevant facts are undisputed. On December 20, 1973, the Philadelphia Special Investigating Grand Jury returned a presentment in which it recommended that appellant be prosecuted for various acts of official misconduct concerning his duties as a cigarette tax agent for the Commonwealth. On the next day, the Philadelphia District Attorney mailed notice to appellant "that bills of indictment in which you are named as a defendant . . . will be presented to the December 1973 Grand Jury no sooner than ten (10) days from tomorrow . . . ." He was indicted on January 3, 1974.*fn4

Appellant received notice on December 28, or December 30,*fn5 but did not retain counsel until May 28, 1974. On January 5, 1974, Judge Takiff, who had presided over the grand jury, ordered all evidence of those proceedings impounded.

[ 239 Pa. Super. Page 449]

On March 12, Judge Blake held a pretrial conference to determine the scope of discovery to be allowed appellant's co-defendants. The matter was deferred until March 20, when Judge Blake directed that the Commonwealth provide the requested material on or before April 15. At a conference held on April 15, Judge Blake entered a formal order requiring the Commonwealth to permit discovery of extensive material -- pretrial transcripts of the grand jury testimony of the defendants and witnesses against them, copies of any documents to be introduced by the Commonwealth at trial, and documents relating to any grants of immunity to prospective witnesses.

At some point after his order of April 15, 1974, Judge Blake became aware of Judge Takiff's conflicting order entered on January 5. He, therefore, rescinded his order and directed the ...


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