Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, January Term, 1974, No. 1435.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., files a dissenting opinion.
[ 247 Pa. Super. Page 402]
Appellant raises the following contentions: (1) the grand jury lacked authority to indict him; (2) he was deprived of his right to challenge the array of the grand jury; (3) the lower court impermissibly condoned the prosecutor's cross-examination of two defense witnesses as to their religious beliefs; (4) the lower court improperly admitted out-of-court statements made by a non-testifying eyewitness; (5) the lower court erroneously allowed testimony concerning appellant's prior criminal record; and (6) the lower court improperly allowed testimony concerning appellant's arrest for an earlier robbery. Because we agree that the lower court erred in allowing the cross-examination of two defense witnesses as to their religious beliefs, we vacate the judgment of sentence and grant appellant a new trial.
On December 27, 1973, appellant was arrested and charged with robbery*fn1 and criminal conspiracy.*fn2 The charges stemmed from a robbery of the Aquarius Bar at 2564 N. 7th Street in Philadelphia earlier that night. After a preliminary hearing, a Philadelphia County grand jury indicted appellant on January 24, 1974. Trial commenced on October 1, 1974, in the Court of Common Pleas of Philadelphia County, but terminated on October 8, when the jury could not reach a verdict. The Commonwealth scheduled a
[ 247 Pa. Super. Page 403]
retrial for January 10, 1975. Immediately prior to trial, appellant made an oral motion to quash the indictment because the grand jury had been illegally constituted and because appellant had not been afforded his right to challenge the grand jury array. The lower court rejected this motion, and trial commenced before a jury in the Philadelphia Court of Common Pleas. On January 16, 1975, the jury found appellant guilty of robbery and not guilty of conspiracy. After the lower court denied appellant's post-verdict motions,*fn3 it sentenced appellant to a four-to-ten years' term of imprisonment. This appeal followed.
Appellant first contends that the grand jury had no power to issue an indictment in his case and that proceedings could only be instituted by information. Prior to November 6, 1973, Article I, § 10 of the Pennsylvania Constitution prohibited the initiation of a criminal prosecution by information. On November 6, 1973, Pennsylvania voters approved a constitutional amendment which provided, in pertinent part: "Each of the several courts of common pleas may, with the approval of the Supreme Court, provide for
[ 247 Pa. Super. Page 404]
the initiation of criminal proceedings therein by information filed in the manner provided by law." On December 17, 1973, the President Judge of the Court of Common Pleas of Philadelphia County petitioned the Supreme Court for permission to replace the system of grand jury indictments with a system of instituting proceedings by information; this change would be effective on January 1, 1974. The Supreme Court granted this petition. During the month of January, 1974, an indicting grand jury continued to function in Philadelphia*fn4 and on January 24, the grand jury indicted appellant. On February 15, 1974, the Supreme Court promulgated Rules of Criminal Procedure pertaining to the filing of informations. See Pa.R.Crim.P. 225 et seq.; 19 P.S. Appendix. On February 27, 1974, the President Judge petitioned the Supreme Court for permission to postpone the effective date of initiation of criminal proceedings by information; the Supreme Court granted this petition. On October 10, 1974, the Pennsylvania legislature passed legislation implementing a system of initiating prosecutions by information in counties which had received the Supreme Court's permission to institute such a system.*fn5 The legislature specified the procedures to be followed in prosecutions initiated by information. On October 22, 1974, the President Judge once again petitioned the Supreme Court to permit the use of informations instead of indictment by grand jury; once again, the Supreme Court granted the petition, effective January 1, 1976. On December 23, 1974, the Supreme
[ 247 Pa. Super. Page 405]
Court issued the following final order which terminated the parade of petitions and postponements:
"AND NOW, to wit, this 23rd day of December, 1975, our Orders heretofore entered granting approval to abolish indicting grand juries are amended to provide:
"Approval granted to abolish indicting grand jury, effective January 1, 1976. Effective January 1, 1976, no grand jury shall be empaneled for the purpose of considering bills of indictment, and no grand jury shall be held over from a prior term as an indicting grand jury. In lieu thereof, proceedings against criminal defendants shall be by information."
We reject appellant's contention that the Philadelphia County Grand Jury lacked power to indict him. We believe that the Supreme Court did not intend to make mandatory the initiation of criminal proceedings by information in Philadelphia County before appropriate rules or statutory provisions governing the information process had been promulgated. Article I, § 10 of the Pennsylvania Constitution provides that courts of common pleas may with the approval of the Supreme Court, "provide for the initiation of criminal proceedings therein by information filed in the manner provided by law." (Emphasis supplied). As of January 24, 1974, the legislature had not passed implementing legislation and the Supreme Court had not issued governing rules of criminal procedure; we will not infer that the Supreme Court meant to require the use of an information when the legal framework of rules mandated by the Constitution had not yet been erected. Cf. In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586, 598 n. 5, 328 A.2d 485, 494 n. 5 (1974). It was not until the order of December 23, 1975, after the legislature had enacted an enabling statute and the Supreme Court had created applicable rules of criminal procedure, that the Supreme Court issued a final order which amended all previous orders and terminated the initiation of criminal prosecutions by grand jury indictment in Philadelphia County. Consequently, we
[ 247 Pa. Super. Page 406]
conclude that the January 1974 Philadelphia County grand jury had power to indict appellant.*fn6
Appellant next contends that the lower court erroneously permitted the Commonwealth to cross-examine two defense witnesses as to their religious affiliation and beliefs. The defense presented one witness who testified that he saw appellant in the Page Three Bar at Germantown Avenue and Haines Street in Philadelphia at 8:00 p. m., on December 27, 1973, the night that appellant allegedly robbed the Aquarius Bar. On cross-examination, the prosecutor and the witness engaged in the following interchange:
"Q. When you say 'brother', what do you mean by 'brother'?
"[Defense counsel]: Objection.
"[Assistant District Attorney]:
"Q. What do you mean by that?
"A. More or less like my religion, we call each other brother, ...