Commonwealth v. Rose
Commonwealth v. Rose
Opinion of the Court
Opinion by
These appeals raise related questions concerning the procedure a common pleas judge must follow when he is acting as a committing magistrate The facts are as follows:
Bose was tried on June 20, and 21, 1967 before a judge and jury on an indictment charging fornication and bastardy. Bose 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 Bose 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 Attor
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. Superior Ct. 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.
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. Cordy 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. DiDio v. Baldi, 176 Pa. Superior Ct. 119, 106 A. 2d 910 (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.
This means that proceedings must he 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.
This also means that a preliminary arraignment must be held pursuant to Rule 116 and, if not waived, a preliminary hearing held pursuant to Rules 116g, 117, 118 and 119. In the Rose appeal, the Superior Court held that trial on the fornication and bastardy charge was itself the preliminary hearing on the perjury charge. It is difficult to uphold such an action as a valid preliminary hearing when Rose did not even know that it was such. As far as he knew, he was
Since no written complaint was filed against Magaziner, the procedure followed was defective. The procedure was likewise defective in the Rose action because no written complaint was filed and because no proper preliminary arraignment and no preliminary hearing were held.
In the appeal of Rose, the order of the Superior Court is vacated and the order of the court below is reinstated. In the appeal of Magaziner, the order of the Superior Court quashing the appeal is vacated and the order of the court below denying the writ is reversed.
After May 1, 1970 see Buies 102 and 118.
Dissenting Opinion
Dissenting Opinion by
While I am in complete agreement with the majority’s interpretation of our Rules of Criminal Procedure, I must respectfully dissent from the majority’s disposition of these two appeals. In my opinion, both appeals should be quashed as interlocutory.
I think there is no doubt that the Commonwealth must strictly adhere to our Rules of Criminal Procedure. Likewise, it is clear that this Court must strictly enforce compliance. We certainly do not promulgate Rules merely to have them ignored or circumvented. But the issue before us now is not whether we should enforce our Rules, but when we should do so. In the instant cases, we may never be required to enforce compliance, since the Commonwealth may not be able to
The majority claims that it is “not deciding these difficult questions” of appealability. But by deciding the instant appeals on their merits, the majority has, in fact, decided that the orders involved here are appealable. The majority does not, however, carefully articulate the reasons for its departure from the normal rules governing finality, nor has it given sufficient indication of the circumstances in which it will again depart from these rules. Clarity in our rules of finality will encourage swifter disposition of litigation on the trial level, and will help keep our dockets free of cases which we may never be required to decide. I do not think it wise to blur our definition of finality by attempting ad hoc dispositions, as the majority does here, and I must, therefore, dissent.
Reference
- Full Case Name
- Commonwealth v. Rose, Appellant; Commonwealth Ex Rel. Magaziner, Appellant, v. Sheriff of Philadelphia County
- Cited By
- 29 cases
- Status
- Published