Com. v. Millhouse

• Decision Date: 28 April 1978
• Citation: 386 A.2d 581,255 Pa.Super. 206
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Andrew MILLHOUSE.
• Court: Pennsylvania Superior Court

Page 581

386 A.2d 581

255 Pa.Super. 206

COMMONWEALTH of Pennsylvania, Appellant, v. Andrew MILLHOUSE.

Superior Court of Pennsylvania.

Submitted June 13, 1977.

Decided April 28, 1978.

Michael R. Stiles, Asst. Dist. Atty., and F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for Commonwealth, appellant.

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

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge.

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.

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 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 under Rule 1100 were referred for decision. The appellee was allowed to take an interlocutory appeal from Judge Greenberg's order. He was also successful in petitioning the court below for a reconsideration of Judge Porter's order. On February 24, 1975, Judge Porter entered an order quashing the indictments on the ground that the appellee had not been given a reasonable notice of his impending indictments.

The Commonwealth appealed this ruling and the cross appeals of the opposing parties were consolidated for argument in this Court. We sustained the appellee's contention that he had not had a trial within the time limits of Rule 1100, but made no ruling on the merits of the Commonwealth's appeal from the order quashing the indictments for lack of reasonable notice inasmuch as we were discharging the appellee under Rule 1100: Commonwealth v. Millhouse, 239 Pa.Super. 445, 362 A.2d 398 (1976). The Commonwealth appealed our ruling and the Supreme Court determined that Rule 1100 had not been violated. The case was remanded to this Court for consideration of the Commonwealth's appeal addressed to the dismissal of the indictments for lack of reasonable notice: Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). We now address ourselves to that question.

A defendant has the right under the common law of Pennsylvania, independently of either statute or rule, to challenge the array of an indicting grand jury on the ground that it was not selected in accordance with law or to challenge an individual grand juror for cause: 17 P.L.E. Grand Jury § 4. This does not include the right to subject a grand jury or grand jurors to a voir dire: Commonwealth v. Dessus, 423 Pa. 177, 185-186, 224 A.2d 188 (1966); Brown v. Commonwealth, 76 Pa. 319 (1874).

At common law a challenge to a grand jury could be made either before or after an indictment was returned. The only time limitation was that it be entered before the plea in court: Commonwealth v. Lopinson, 427 Pa. 284, 292-293, 234 A.2d 552 (1967); Commonwealth v. Weiner, 101 Pa.Super. 295, 298 (1930). This time period eliminated the necessity of notice before indictment because the challenge could be made after the event. We said in Commonwealth v. Bruno, 203 Pa.Super. 541, 547, 201 A.2d 434, 436 (1964):

"In some of those cases the fact of notice to the defendants of when their cases were to be considered by the grand jury was disputed. However, lack of notice has been held not to be prejudicial in itself because the defendant is privileged to challenge the array and formation of the grand jury at any time until a plea is entered or a jury sworn."

However, more recent decisions have held that the challenge to the array of a grand jury or to an individual juror must be made before indictment, this by extension of Rule 203 of the Pennsylvania Rules of Criminal Procedure: Commonwealth v. Wasserman, 466 Pa. 430, 437-438, 353 A.2d 430 (1976); Commonwealth v. Polaf, 248 Pa.Super. 26, 374 A.2d 1299, 1301 (1977); Commonwealth v. Sills, 237 Pa.Super. 280, 289-290, 352 A.2d 539.

There is merit in the requirement that a challenge to the validity of an indictment be made the first order of business. Otherwise the Commonwealth may lose the right to re-indict within the applicable statute of limitations or witnesses may become unavailable. The courts have an equal interest in having the legality of an indictment determined as soon as possible lest it go through the time consuming proceedings preliminary to a trial only to have the indictment thrown out at a later stage of the proceeding.

These considerations explain our holding in Commonwealth v. Magid & Dickstein, 91 Pa.Super. 513, 516-517 (1927), that a challenge to the grand jury ". . . would have been considered on motion to quash if made at the first opportunity after indictment." It has been repeatedly held that the challenge "must be promptly exercised": Commonwealth v. Dessus, supra, 423 Pa. 177, 188-189, 224 A.2d 188; Commonwealth v. Sills, 237 Pa.Super. 280, 290, 352 A.2d 539 (1975); Commonwealth v. Marmon, 210 Pa.Super. 202, 210, 232 A.2d 236 (1967). The same necessity for prompt action exists if a claim of lack of adequate notice of an indictment is to be made the basis of a challenge to the validity of an indictment. Otherwise, the time of the trial court may be wasted.

In a recent decision, Commonwealth v. Lee and Lewis, 246 Pa.Super. 294, 369 A.2d 1329, 1331 (1977), we reconciled the right of a defendant to a reasonable time within which to challenge the array of a grand jury and the needs of the Commonwealth and the courts to have such a motion disposed of as promptly as possible by holding that the...