Commonwealth v. Rose
| Decision Date | 30 January 1970 |
| Citation | 261 A.2d 586,437 Pa. 30 |
| Parties | COMMONWEALTH of Pennsylvania v. Joseph ROSE, Appellant. COMMONWEALTH of Pennsylvania ex rel. D. Arthur MAGAZINER, Appellant, v. The SHERIFF OF PHILADELPHIA COUNTY. |
| Court | Pennsylvania Supreme Court |
Vincent A. Cirillo, Norristown, for appellant.
William T. Nicholas, Richard A. Devlin, Stewart J. Greenleaf, Asst Dist. Attys., Parker H. Wilson, First Asst. Dist. Atty Milton O. Moss, Dist. Atty., Norristown, for appellee.
William T. Coleman, Jr., Stuart H. Savett, Louis E Levinthal, Louis M. Natali, Jr., Dilworth, Paxson, Kalish Kohn & Levy, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Philadelphia, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
These appeals raise related questions concerning the procedure a common plea judge must follow when he is acting as a committing magistrate. The facts are as follows:
Rose was tried on June 20, and 21, 1967 before a judge and jury on an indictment charging fornication and bastardy. Rose testified he could not have engaged in intercourse with the prosecutrix at the time of the alleged conception because at that time he was attending a training course with the Army National Guard in Maryland. In rebuttal, the Commonwealth called a National Guard officer who testified that Rose was finally separated from service five months before the date appellant stated he concluded the training course. After the jury's verdict of acquittal, Judge Ditter, at the request of the Assistant District Attorney, sat as committing magistrate and held the appellant on a charge of perjury based on his testimony as to his whereabouts during the time in question. No criminal complaint accusing the appellant of perjury was ever issued, and no preliminary hearing was ever held.
On September 8, 1967, the Grand Jury of Montgomery County approved an indictment charging Rose with perjury, and on January 19, 1968 appellant filed a motion to quash the indictment. The court below granted the motion to quash giving as its principal reason the failure to adhere to the Rules of Criminal Procedure in that no complaint was ever issued nor a preliminary hearing ever held. On appeal the Superior Court reversed that order, 214 Pa.Super. 50, 251 A.2d 815 (1969), holding that a complaint and preliminary arraignment were unnecessary because Rose knew of the specific charges against him and that the court's action itself constituted a preliminary hearing.
Magaziner, a defendant in a minority stockholders' action, was called as a witness upon cross-examination. On April 1, 1969 he was cross-examined as to what had occurred at a shareholders' meeting on January 13, 1969. Counsel for the plaintiffs in that action, Mr. Egnal, read from the transcript of that meeting and asked Magaziner if he, Egnal, had made certain remarks to Magaziner at that meeting. Magaziner said that interchange had never taken place and after repeating this several times suggested that Egnal had been talking to Mr. Katz, the stenographer. At this point the hearing was adjourned, and when it resumed on May 19, Magaziner stated he had heard a tape recording of the meeting and learned that the interchange had actually taken place. He admitted he erred in saying these things had not happened, but maintained that when they had happened he had not heard them.
At the conclusion of this testimony but before the conclusion of the motion for a preliminary injunction, Judge Greenberg, who was presiding, charged Magaziner with perjury. He refused to enter bail and was released on a rule for a hearing on a writ of habeas corpus issued by Judge Alexander. On June 4, Judge Meade heard argument and dismissed the writ. Thereupon Judge Meade assumed the role of a committing magistrate and held a preliminary hearing on the perjury charge. He did this despite the fact that no complaint had been filed. Again Magaziner refused to enter bail and made application for a second writ of habeas corpus. Judge Canuso dismissed th writ on August 8, 1969, and the Superior Court quashed Magaziner's appeal on August 27, 1969.
In the Magaziner action a very serious question exists as to whether an appeal from the denial of a pretrial habeas corpus petition is interlocutory and must be quashed. Commonwealth ex rel. Gordy v. Lyons, 434 Pa. 165, 252 A.2d 197 (1969); Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967); Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A.2d 457 (1965); Commonwealth ex rel. Di Dio v. Baldi, 176 Pa.Super. 119, 106 A.2d 610 (1954). In the Rose action, an equally serious question exists as to whether the indictment cured any prior defects or, if not, whether defects preliminary to the indictment should be considered on a motion to quash. We specifically are not deciding these difficult questions. We are deciding the merits of these appeals because great confusion has resulted over the proper interpretation and application of our Rules of Criminal Procedure in the situation where a common pleas judge sits as a committing magistrate, and under our administrative powers we feel it necessary to set clear guidelines in this area for the lower courts.
Our Rules of Criminal Procedure speak in clear, inclusive terms. Nothing in them suggests that they do not apply to common pleas judges who sit as committing magistrates. Therefore, we hold that common pleas judges when sitting as committing magistrates must follow the rules precisely.
This means that proceedings must be initiated by a written complaint. Rule 102 clearly states, 'all proceedings shall be initiated by a written complaint,' and until other rules carve out exceptions, the reference to 'all' must be taken literally. [1] It is no answer that the particular defendant already has notice of the charges against him. Notice or knowledge of a charge is not a unitary thing; it is a spectrum which ranges from total lack of knowledge to a general impression to detailed awareness of all relevant facts. Rule 104, in prescribing the contents of a complaint established a standard of knowledge that all accused must possess. For this Court and other courts to have to determine on a case-by-case basis whether a particular defendant had...
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