No. 364 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division at Nos. 452, 453, March Term, 1975.
Herbert L. Floum, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Cercone, J., concur in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 58]
After a non-jury trial on May 27, 1975, appellant was convicted of robbery*fn1 and simple assault.*fn2 Post-verdict motions were denied, and appellant was sentenced to concurrent prison terms of two to five years on the robbery charge and one to two years on the assault charge. Counsel's failure to file a brief resulted in appellant's direct appeal being non-prossed. Appellant subsequently filed a Post Conviction Hearing Act*fn3 petition which was denied on November 1, 1976. Appellant was, however, granted leave to file a direct appeal nunc pro tunc to this court. Appellant
[ 260 Pa. Super. Page 59]
now contends that he was denied effective assistance of counsel because his trial counsel failed to move to quash the indictment for robbery. We disagree and affirm the judgment of sentence.
Facts pertinent to the instant issue are as follows. Appellant, following his attack on a barmaid, was arrested on February 13, 1975, at the Webb Bar in Philadelphia and charged with robbery, aggravated assault,*fn4 simple assault and terroristic threats.*fn5 At the preliminary hearing on February 1, 1975, the presiding magistrate, at the request of appellant's attorney, and on the basis of no evidence indicating a taking of money, substituted a charge of attempted robbery for the original robbery charge. Nevertheless, on March 6, 1975, the grand jury returned an indictment of robbery against appellant. Appellant now argues that his due process rights were infringed by the grand jury's returning an indictment of robbery after the charge had been dismissed by the magistrate at the preliminary hearing. Appellant reasons that the Commonwealth's only recourse was to re-arrest the appellant so as to provide him with a new preliminary hearing on the robbery charge. Counsel's failure to move to quash the indictment on this basis consequently constituted ineffective assistance. We find such an argument untenable.
It is established law in Pennsylvania that:
"[W]hen a prosecuting officer is satisfied from his investigations that a higher grade of offense, cognate to the one returned by the committing magistrate, is properly chargeable against a defendant, he may draw the bill accordingly . . ." Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 421, 76 A.2d 210, 211 (1950), quoting Maginnis's Case, 269 Pa. 186, 195, 112 A. 555, 558 (1921).
Thus, in Maginnis's Case, the justice of the peace charged the defendant with simple assault and battery, yet it was held not improper to ...