Com. v. Cardonick

• Decision Date: 28 June 1972
• Docket Number: 327,No. 327,Nos. 325,No. 325,No. 326,326,325,s. 325
• Citation: 292 A.2d 402,448 Pa. 322
• Parties: COMMONWEALTH of Pennsylvania v. Leon CARDONICK, Appellant in, et al. Appeal of Frank TOUGHILL inCOMMONWEALTH of Pennsylvania, Appellant in, v. Wilson CANADA.
• Court: Pennsylvania Supreme Court

Page 402

292 A.2d 402

448 Pa. 322

COMMONWEALTH of Pennsylvania v. Leon CARDONICK, Appellant in No. 325, et al.

Appeal of Frank TOUGHILL in No. 326.

COMMONWEALTH of Pennsylvania, Appellant in No. 327, v. Wilson CANADA.

Nos. 325, 326, 327.

Supreme Court of Pennsylvania.

June 28, 1972.

Arnold Glaberson, Philadelphia (at 325), Maier Segal, Philadelphia (at 326), Cecil B. Moore, Philadelphia (at 327), for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This consolidated appeal requires us to decide whether the return of indictments, subsequently quashed because of the failure to notify defendants which grand jury would consider the bills of indictment, ¹ tolled the statute of limitations. ² We conclude that the quashed indictments failed to toll the statute of limitations and the later bills, submitted and returned after the time period provided by the statute of limitations, ³ were properly quashed in No. 327, Commonwealth v. Canada, ⁴ and should have been quashed in Nos. 325--26, Commonwealth v. Cardonick et al. The facts of the two appeals are as follows:

Nos. 325--26

Appellants, Leon Cardonick and Frank Toughill, were charged with numerous counts of forging cigarette tax stamps for tax evasion purposes, in violation of the Cigarette Tax Act, Act of July 8, 1957, P.L. 594, §§ 101 et seq., 72 P.S. §§ 3168.101 et seq. ⁵ and the Act of June 24, 1939, P.L. 872, § 328, as amended, 18 P.S. § 4328. ⁶ The alleged criminal acts occurred between February 9, 1965, and January 26, 1966. The preliminary hearing on these charges was held on April 4, 1967, and appellants were bound over for the grand jury.

The bills of indictment on these charges were presented to the July grand jury and indictments were returned on July 18, 1967. Appellants however were not notified that the bills of indictment would be presented to the July rather than the May or June grand juries. ⁷

Appellants therefore moved to quash the indictments on the ground of lack of notice and the motion was granted on June 7, 1968. In order to exercise the constitutional right to challenge the 'array of the grand jury or an individual juror', it is necessary to raise the challenge 'before the grand jurors are sworn.' Pa.R.Crim.P. 203; see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966). Without advance notice of the specific grand jury which will consider the bills of indictment, it is of course impossible to satisfy Rule 203's requirement of advance challenge to the array. In Commonwealth v. Collemacine, 429 Pa. 24, 230 A.2d 296 (1968), we affirmed the quashing of the indictments because of the failure to notify the defendant that the bill of indictment would be presented to a later grand jury than the one 'to which he was handed over. . . .' Id. at 27, 239 A.2d at 298.

The Commonwealth then gave appellants notice that the bills of indictment were to be re-submitted to the July 1968 grand jury. Appellants secured a rule to show cause why the attempt to re-indict them should not be barred by the statute of limitations. Appellants were charged with misdemeanors and summary offenses and the applicable statute of limitations is two years. ⁸ The last alleged act occurred on January 26, 1966, more than two years before the re-submission of the bills of indictment in July 1968. Relief was denied and on July 30, 1968, the indictments were returned by the grand jury.

Appellants then moved to quash the indictments on the same basis--that they were returned beyond the two year statute of limitations. The motion was denied on the ground that the original indictments, returned within the two year period and quashed for lack of notice, tolled the statute of limitations. The motion to quash was renewed without success shortly before trial and in post-trial motions.

After a jury trial, appellants were found guilty on almost all of the indictments. Post-trial motions were filed and denied. Leon Cardonick was sentenced to ten concurrent terms of 11 1/2 to 23 months imprisonment, 9 years probation and $30,000 in fines, and fourteen fines of $500 or 10 days imprisonment on the summary offenses. Frank Toughill was sentenced to ten concurrent terms of 6 to 23 months imprisonment, 9 years probation, and $30,000 in fines, and fourteen fines of $500 or 10 days imprisonment on the summary offenses. On appeal to the Superior Court, the judgments of sentence were affirmed in per curiam orders without opinion. Commonwealth v. Cardonick, 218 Pa.Super. 827, 279 A.2d 306 (1971); Commonwealth v. Toughill, 218 Pa.Super. 919, 279 A.2d 212 (1971). We granted allocatur. ⁹

Appellee, Wilson Canada, was charged with possession of a firearm after conviction of a crime of violence, aggravated assault and battery, and assault and battery with intent to commit murder. The events on which these charges were based occurred on March 14, 1967. Appellee was bound over to the grand jury after a preliminary hearing on March 27, 1967. He was not notified that the bills of indictment were to be presented to the August rather than the April, May, June, or July grand juries. ¹⁰

Canada moved to quash the indictments in 1969 on the ground of lack of notice, the basis for relief in Commonwealth v. Collemacine, supra. The motion was granted. The Commonwealth re-submitted the bills of indictment to the grand jury and indictments were returned on February 4, 1970. Another motion to quash was made and granted on the ground that the indictments were returned after the expiration of the two year statute of limitations. ¹¹ The Commonwealth appealed to the Superior Court which affirmed the quashing of the indictments in an opinion by Judge Hoffman with Judges Wright, Watkins and Jacobs dissenting. Commonwealth v. Canada, 219 Pa.Super. 407, 281 A.2d 675 (1971). We granted allocatur. ¹²

I

There is no question that in both cases, the second set of indictments was returned more than two years after the alleged crimes occurred, beyond the time period permitted by the statute of limitations. ¹³ Nevertheless, the Commonwealth argues that the return of the first set of indictments, although subsequently quashed, tolled the statute of limitations. Therefore, on their theory, in Nos. 325--26, the statute was tolled on July 18, 1967, only one and one half years after the last act charged, and would not begin to run again until June 7, 1968, when appellants Cardonick and Toughhill quashed the indictments. In the Commonwealth's view, the return of new indictments on July 30, 1968, therefore would be well within the two year period. ¹⁴ In No. 327, the Commonwealth likewise argues that the first indictments returned on August 3, 1967, only 6 months after the acts charged, tolled the statute which would not begin to run again until the indictments were quashed on October 27, 1969. Thus the Commonwealth argues that the subsequent indictments returned on February 4, 1970, would likewise be within the two year period. We cannot accept these contentions.

The statute of limitations expressly requires that 'all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and . . . all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed. . . .' ¹⁵ It is well established that 'the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not operate to stop the running of the statute of limitations pending the return or filing of another indictment or information in the absence of a statute expressly so providing.' ¹⁶ 1 Wharton, Criminal Law and Procedure § 184 at 427--28 (Anderson ed. 1957); State v. Silver, 239 Or. 459, 460, 398 P.2d 178, 179 (1965); State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923); State v Disbrow, 130 Iowa 19, 106 N.W. 263 (1906); State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972); cf. United States v. McCarthy, 445 F.2d 587 (7th Cir. 1971); Hodges v. State, 214 Ga. 614, 615, 106 S.E.2d 795, 796 (1959); State v. Hundley, 272 N.C. 491, 158 S.E.2d 582 (1968).

Statutes of limitations are of course liberally construed in favor of the defendant and against the Commonwealth. Waters v. United States, 328 F.2d 739, 742 (10th Cir. 1964); United States v. Moriarty, 327 F.Supp. 1045, 1047 (E.D.Wis.1971); State v. Fogel, 16 Ariz.App. 246, ---, 492 P.2d 742, 744 (1972).

Our statute, like the statutes involved in the cases above cited, provides no express exception for an invalid indictment and we see no reason for abandoning the traditional rule that invalid indictments do not toll the statute of limitations. As was observed in State v. Disbrow, supra:

'It seems to us a reasonable and just proposition that, in the absence of any statute saving such right to the state, the running of the statute of limitations ought not to be interrupted or suspended by the return and pendency of an indictment upon which no valid conviction or judgment can be founded. Such an indictment is no indictment. It is a nullity, and while it may serve as authority for the trial court to continue the defendant in custody and cause a resubmission of the case to the grand jury, such order is in effect the mere direction that the original inquiry shall be resumed as if the defective indictment had never been voted or returned into court. It is no more than a restoration of the case to the status it occupied at the time it was originally submitted. The grand jury takes it up anew and may present or ignore the bill without any reference whatever to the fact that one indictment has been presented and set aside.'

Id. 130 Iowa at 29, 106 N.W. at 266; accord, State v. Silver, 239 Or....