No. 241 April Term, 1977, Appeal from the Order and Sentence Entered October 6, 1976, of the Court of Common Pleas, Criminal Division of Beaver County at No. 121 of 1976.
John Alan Havey, Aliquippa, for appellant.
Keith D. McMillen, Assistant District Attorney, and Joseph S. Walko, District Attorney, Beaver, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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On December 3, 1975 appellant was arrested and charged with manufacture of a controlled substance and possession of a controlled substance (marijuana).*fn1 He was convicted in a jury trial. Post-verdict motions were timely filed and denied, and he was sentenced to four years' probation on the manufacture charge. Sentence was suspended on the possession charge.
Appellant contends that the court below erred in refusing to quash the indictment for manufacture because the magistrate, following the preliminary hearing, did not hold him for court on the manufacture charge. The preliminary hearing transcript bears him out: in it he is held for court on the possession charge and it fails to mention the manufacture charge.
On the day before the scheduled trial date, counsel moved to quash the indictment. He sought to justify the lateness of his motion by explaining that the notice of presentment to the grand jury and the notice of indictment only mentioned the possession charge. He stated he had not become aware until the previous day that the indictment itself included two charges and this had only come to his attention during plea discussions with the prosecutor. The court denied the motion to quash as untimely, citing Pennsylvania Rule of Criminal Procedure 305, which states in pertinent part:
"Except as provided in these Rules, no pretrial application shall be considered if made less than ten days before trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application."
Counsel's attempt to invoke the part of the rule allowing nunc pro tunc pre-trial motions met with the following response from the court:
"We have examined the notices [of presentment and of indictment] and they state, in both instances, 'General
[ 253 Pa. Super. Page 37]
Narcotic Law Violation,' and underneath on the next line, 'Possession of a Controlled Substance.' It strikes us ...