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COMMONWEALTH v. LLOYD (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
LLOYD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1975, No. 513, in case of Commonwealth of Pennsylvania v. Ralph L. Lloyd.

COUNSEL

Elaine DeMasse and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

David Fabe Michelman, 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 Price, J.

Author: Price

[ 239 Pa. Super. Page 274]

On April 21, 1975, appellant-defendant Ralph L. Lloyd was tried by a judge sitting without a jury on charges of theft by receiving stolen goods*fn1 and unauthorized use of an automobile.*fn2 He was found not guilty of receiving stolen goods and guilty of unauthorized use of an automobile. Because the errors alleged by appellant on appeal are without merit, we will affirm the judgment of sentence of the lower court.

[ 239 Pa. Super. Page 275]

Appellant's first contention is that the indictment against him should have been quashed because he was not properly notified of the presentation of his case to the grand jury. See, Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968).

At the conclusion of the preliminary hearing, which was held on December 23, 1974, the presiding judge advised appellant that "this case will be submitted to the sitting Grand Jury in no less than ten days." At that time, it was impossible for appellant's case to be submitted to the sitting (December) grand jury in "no less than ten days," because the sitting grand jury would terminate before the lapse of the ten day period. It was also impossible for appellant's case to be submitted to the sitting grand jury because Pa.R.Crim.P. 203(c) requires a minimum interim period of ten days between the preliminary hearing and submission of the case to the grand jury. Thus, the first grand jury to which appellant's case could legally be submitted was the January Grand Jury. In fact, appellant's case was submitted to the January Grand Jury on January 12, 1975.

In Commonwealth v. Collemacine, supra, the Supreme Court of Pennsylvania held that "a defendant is entitled to notice of presentment of his case to the grand jury if the presentment is to a grand jury other than the next term after the defendant's preliminary hearing." Commonwealth v. Johnson, 440 Pa. 342, 353, 269 A.2d 752, 758 (1970). The reason for not requiring notice if the defendant is being bound over to the next term is that it is general practice for committing magistrates and judges to bind defendants over to the next term of grand jury. Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972); Commonwealth v. Rosenfield, 220 Pa. Superior Ct. 105, 283 A.2d 870 (1971), aff'd, 448 Pa. 531, 292 A.2d 323 (1972). Under such circumstances, the date of presentment is "readily ascertainable." Commonwealth v. Sullivan, 446 Pa. 419, 432, 286 A.2d 898, 902 (1971).

[ 239 Pa. Super. Page 276]

Under the circumstances, we hold that appellant was not entitled to notice that his case would be presented to the January Grand Jury. Appellant was represented by counsel who knew, or should have known, that appellant's case could not be presented to the December Grand Jury. Because appellant's case was submitted to the next term of grand jury, the first one possible, he was not entitled to be notified. Commonwealth v. Johnson, supra.

Appellant's second contention is that the evidence produced at trial was insufficient to convict him of unauthorized use of an automobile. The evidence against appellant consisted of the testimony of two witnesses. Officer James Canonica of the Philadelphia Police Department testified that on October 21, 1974, he and his partner were patrolling an area in West Philadelphia in an unmarked police car. The vehicle in front of them, a 1974 Mercury, was exceeding the speed limit, and narrowly missed striking some children playing in the street. The driver of the ...


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