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decided: April 28, 1978.



Michael R. Stiles, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.

Gerald A. Stein and Abraham T. Needleman, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result of this opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 255 Pa. Super. Page 208]

Andrew Millhouse, the appellee, was indicted on January 3, 1974, on charges concerning alleged official misconduct in his duties as a cigarette tax agent for the Commonwealth of Pennsylvania. In the ensuing four years this case has had a slow and torturous history both in the court below and on appeal: Commonwealth v. Millhouse, 239 Pa. Super. 445, 362 A.2d 398 (1976); Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). It has not yet been reached for trial. The issue now before us arises on appeal from an order of the court below quashing the indictments of the appellee for lack of adequate notice.

[ 255 Pa. Super. Page 209]

The underlying factual history is undisputed. The presentment of an investigating grand jury recommending prosecution of the appellee was returned on December 20, 1973, to presiding Judge Takiff of the court below who then directed the Commonwealth to seek the appropriate indictments. On the following day, December 21, the District Attorney sent a letter by certified mail, return receipt requested, to the appellee, addressed to 8616 Bayard Street, notifying him "that bills of indictment in which you are named as a defendant will be presented to the December, 1973, grand jury no sooner then ten (10) days from tomorrow" [December 22, 1973]. The appellee had moved from the above address since it had been given to the Investigating Grand Jury and the letter was forwarded and delivered to appellee's new address, 3121 North Carlisle Street, on December 28, 1973, where a receipt for the letter was signed "Andrew Millhouse" by appellee's brother. Appellee did not read this letter from the District Attorney until December 30. On December 31 he telephoned Abraham T. Needleman, a Philadelphia attorney who had represented him previously. Mr. Needleman was away from his office and unavailable to the appellee for approximately a week. The appellee did not attempt to contact anyone else in Mr. Needleman's office prior to the indictment nor did he attempt to notify the District Attorney that he was without a lawyer or that he wanted more time before the indictment was presented.

A copy of the District Attorney's letter to the appellee was also mailed to Mr. Needleman on December 21 on the assumption that he was appellee's attorney. However, he did not represent appellee at that time and did not enter an appearance for him in this case until May 28, 1974, after satisfactory financial arrangements had been made concerning past and future services.

The indictments were submitted to the December grand jury on January 3, 1974, and approved that day. On February 6, 1974, the appellee, unrepresented by counsel, was arraigned. The court concluded that the appellee did not meet the financial stringency test that would allow representation

[ 255 Pa. Super. Page 210]

    by the public defender's office. Preliminary hearings were scheduled on March 12, 20, April 15, 18, 25 and May 1, 1974, but postponed on each occasion because the appellee was unrepresented by counsel. On May 3, 1974, Judge Blake, the calendar judge of the court below, admonished the appellee for his failure to obtain counsel and postponed further proceedings until May 13 in order to permit appellee to find counsel. Appellee assured the court at that time that while he was having difficulty reaching an agreement on a fee, he was sure that counsel could be obtained by May 13. On that date the appellee failed to appear before the court and a bench warrant was issued for his arrest.

On May 28, 1974, Abraham T. Needleman entered his appearance as attorney for the appellee and the bench warrant was withdrawn. This was 145 days after indictment, 111 days after arraignment and 77 days after the initial listing of the case for a preliminary hearing.

Appellee's attorney immediately initiated a request for discovery of certain records of the investigating grand jury which motion was disposed of on July 3, 1974. The case was then assigned to Judge Cain for trial, but on October 1, 1974, he excused himself, apparently because of his acquaintance with a co-defendant. Thereafter the case was assigned to Judge Porter for trial. A pre-trial conference was held on October 15, 1974, and a trial date of December 2, 1974, was set with the agreement of all concerned.

On November 1, 1974, the appellee's attorney filed motions seeking dismissal of the indictments on the basis of (a) an alleged violation of Rule 203 of the Pennsylvania Rules of Criminal Procedure because of inadequate notice of the indictment, and (b) the requirement of Rule 1100 of the Pennsylvania Rules of Criminal Procedure that the appellee be tried within 270 days.

Relief on the first ground was denied on November 29, 1974, by Judge Porter and on the second ground on December 2, 1974, by Judge Greenberg of the court below to whom all motions ...

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