NO. 661 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 384-387 September Term, 1974 (Frame) and Nos. 389-392 September Term, 1974 (Hallman).
Bernard L. Siegel, Deputy Attorney General, Philadelphia, for Commonwealth, appellant.
Anthony D. Pirillo, Jr., Philadelphia, submitted a brief for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., concurs in the result. Price, J., dissents. Watkins, President Judge, did not participate in the consideration or decision of this case.
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Appeal is taken from the December 6, 1976, Order wherein the lower court granted appellees' motions in arrest of judgment and provided that "if the granting of the Motions in Arrest of Judgment is disturbed on appeal, it is further hereby Ordered and Decreed that the defendants' Motions for a New Trial are granted." (BIUNNO, Judge). We agree with the lower court in its decision to arrest judgment, and therefore need not consider appellees' motions for a new trial. Further, because only the failure to give prior notice to the defendants of the submitting to the indicting grand jury the charges made by the investigating grand jury served as the reason the court below arrested judgment, and that issue is preserved for our consideration, our deliberations will center upon that question.
A consideration of certain matters occurring pre-trial is necessary. A special investigating grand jury was convened in and for Philadelphia County under the supervision of Honorable Harry A. TAKIFF, Judge. This body completed its work and the Commonwealth submitted bills of indictment to the September indicting grand jury. The record
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shows that this was accomplished on September 9, 1974, without notice to our appellees. On September 25, 1974, counsel for five of the named seven defendants, including counsel for Frame and Hallman, appeared before Hon. Stanley KUBACKI, Judge, to argue certain motions, one of which was to quash the indictments because the Commonwealth had given appellees no prior notice of submission of the presentment to the indicting grand jury. Pa.R.Crim.P. 203(c) provides that a bill of indictment shall not be submitted to a grand jury until ten days after a defendant is held for court, unless the Commonwealth shows cause (or the defendant and Commonwealth agree) for an earlier submission so that a defendant may challenge the array of the grand jury, pursuant to Rules 203(a) and (b). The Commonwealth claims that there was no need to give Rule 203(c) notice because (1): Rule 203 does not apply to the situation of presentments of a special investigating grand jury and (2) the likelihood that the defendants would flee if notice would have been given. No evidentiary hearing was held, or testimony otherwise taken or received regarding the notice.
Prior to Judge KUBACKI'S disposition of these motions which were presented and argued at the September 25, 1974, argument, the Commonwealth, on November 8, 1974, presented to the lower court a "petition for leave of court to submit bills of indictment without ten days notice." In this petition, the Commonwealth contended that no notice had been given of the September 9th submission to the indicting grand jury because Rule 203 did not apply. Nevertheless the Commonwealth, rather inconsistently, it seems, requested leave of court to submit the bills without the "ten day notice period, as provided for in Pa.R.Crim.P. 203", alleging as cause that the applicable statute of limitations would have run.*fn1 That day, November 8, 1974, Judge BIUNNO granted leave to submit the bills of indictment to the November Term, indicting grand jury. The record does not
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show that any evidentiary hearing, or even oral argument, was held relative to this petition.
The inconsistencies of the Commonwealth's position confound us. First it submits the bills of indictment to the September indicting grand jury. Then it answers a defense motion to quash with an argument that Rule 203 does not apply, and furthermore that if they were given prior notice it is likely that these defendants would flee. No evidentiary hearing is conducted to establish the likelihood of flight. Then, before a ruling is made on the matters argued on September 25, 1974, the Commonwealth presented a petition asking leave to dispense with the notice provisions of Rule 203 for the cause alleged that the statute of limitations will run. The Commonwealth's petition was granted, again without an evidentiary hearing to prove the cause alleged. But the record reflects that no bills of indictment were submitted ...