Commonwealth v. Schwartz

56 Pa. D. & C.2d 147, 1972 Pa. Dist. & Cnty. Dec. LEXIS 365
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 31, 1972
Docketnos. 1064-1067, inclusive and nos. 2026-2041, inclusive
StatusPublished

This text of 56 Pa. D. & C.2d 147 (Commonwealth v. Schwartz) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Schwartz, 56 Pa. D. & C.2d 147, 1972 Pa. Dist. & Cnty. Dec. LEXIS 365 (Pa. Super. Ct. 1972).

Opinion

SMITH, J.,

Twenty indictments returned by the grand jury of June sessions, 1970, charged this defendant with 14 offenses as follows:

Interfering with police officer

Escape through negligence

Obstructing justice

Conspiracy

Corrupt solicitation

Blackmail

False pretenses

Bribery

Bribery of servants and employees

Larceny by bailee

Burglary

Receiving stolen property

Bringing stolen property into Commonwealth

Larceny by bailee; fraudulent conversion.

Defendant has made six pretrial applications to quash various of these indictments, each motion asserting a different ground. A hearing of certain of these motions included the taking of testimony on factual issues raised by the Commonwealth’s answers to the motions. All six are now ready for disposition.

I

Indictments nos. 1064-1067 are challenged on the [150]*150ground they were returned in violation of defendant’s right to have 10 days notice of their presentment to the grand jury. The fact is undisputed that the indictments in question were returned June 17, 1970, after being presented by special leave sought and obtained by the Commonwealth of Judge Samuel Rosenberg of this court on that very day. Judge Rosenberg was the judge regularly in charge of the grand jury then in session. The fact is also undisputed that the statute of limitations was about to run on certain of the alleged criminal acts the Commonwealth sought to charge against defendant, and that this ground for haste was asserted in the petition of the Commonwealth. Counsel for defendant, while given only a few minutes notice of the proposed action of the Commonwealth, was present and opposed the application. Judge Rosenberg granted it under the provisions of Pennsylvania Rule of Criminal Procedure 203(c), which permitted the court “for good cause shown” to authorize presentment of an indictment without the otherwise mandated 10-day interval after preliminary hearing.

The pretrial hearing judge is aware of no authority vested in him to review and affirm or overrule the action of Judge Rosenberg, a judge of equal and coordinate jurisdiction. His action may be reviewable on appeal from conviction, should that be the outcome of trial, but not before. It may be of some aid to a reviewing tribunal, since the pretrial hearing judge has listened to and pondered testimony and argument on the contention, to state the result of his reflection.

That the statute of limitations is about to run on an alleged criminal offense would seem, if anything should be, good cause to permit quick submission of a presentment, without the normal 10-day interval. Even if the necessity has arisen by reason of negligence [151]*151on the part of the prosecutor or other officer of the Commonwealth, defendant possesses no inherent right to benefit by that negligence and to have the interest of the community denied relief from that negligence though it be at the last moment.

The factual controversy in the case is over the accuracy of the reason stated in the petition presented to Judge Rosenberg as accounting for the Commonwealth’s dilatoriness to the last possible day in seeking the indictments in question. The Commonwealth alleged there had been an informal agreement with defense counsel not to indict pending disposition of appeals already perfected to the Superior Court of Pennsylvania, by which defendant sought to overturn actions of Judge Joseph Sloane sitting as committing magistrate at preliminary hearing. Defendant denied any such agreement and contended the Commonwealth’s delay in securing indictments was its own pure negligence from which it was not entitled to be relieved at the sacrifice of his right to 10-days notice of presentment to the grand jury.

In the opinion of the pretrial hearing judge, determination of this issue, whether by Judge Rosenberg or on this application, is immaterial to the finding of good cause for immediate submission of the presentment arrived at by Judge Rosenberg. The controlling fact was that otherwise defendant would escape prosecution on the charges over which the statute of limitations was imminent. How that came to be the fact does not alter it as a fact.

But even careful examination of the circumstances through which the prosecution of the case was allowed to languish until the very last day of indictability is not persuasive toward the granting of the present application. The circumstances were these: Defendant filed some 14 appeals in the Superior Court of Penn[152]*152sylvania from actions of Judge Sloane sitting as committing magistrate which to him appeared flagrantly erroneous. He then petitioned for grant of supersedeas on each appeal. These petitions came before Judges Spaulding and Hoffman, of the Superior Court. There is no dispute that the Commonwealth’s attorney, Mr. Crawford, at that point made a voluntary undertaking to the court, representing it would be unnecessary for it to grant the relief sought by defendant, supersedeas, because he would promise that no further steps would be taken in the lower court until a certain later point. The parties disagree flatly on what was to be the later point; Mr. Crawford’s recollection is that it was until the appeals were disposed of, and he expected this to be swiftly accomplished by grant of the Commonwealth’s motion to quash. Defense counsel’s recollection is that it was until the petition for supersedeas was acted upon. The Superior Court judges denied the supersedeas within a few days. By reason of a number of continuances, the appeals remained pending and were not finally quashed until more than a year later.

The testimony for the Commonwealth is that defense counsel assented to this offer by the Commonwealth to stay its hand pending a ruling in the appellate court. Defense counsel’s testimony is that he made no response whatever to the proposal and that no agreement came into being. Thus, defense counsel strenuously challenges the assertion in the petition to Judge Rosenberg that the reason for the Commonwealth’s laggardly prosecution was the existence of “an informal agreement.”

To the view of the pretrial hearing judge, it is unnecessary that defense counsel have become party to an agreement for the proposal to be binding on the Commonwealth. A representation to a court that it [153]*153need not grant a defendant relief he is seeking because the Commonwealth will afford him the relief voluntarily, is amply binding. Otherwise, courts and counsel in practice before them could not deal responsibly with each other. On the Commonwealth’s own version, it becomes bound for some indefinite time, until the appeals were disposed of, not to prosecute further.

But whatever might be the case if the statute of limitations were years off in the future, no proposal or agreement whatever could bind the Commonwealth not to act when it found its prosecution about to be barred. Such a proposal or agreement would be one to commit dereliction of sworn official duty, and void for illegality.

On the version of defense counsel, the Commonwealth was not bound by its voluntary proposal to the Superior Court, certainly not by any joinder therein by him to constitute it an agreement: therefore, the Commonwealth remained completely free to proceed to indict at any time, and was simply overtaken in the end by its own negligence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Smyth
104 F. Supp. 283 (N.D. California, 1952)
Commonwealth v. Hershman
90 A.2d 314 (Superior Court of Pennsylvania, 1952)
Commonwealth v. BRUNO
201 A.2d 434 (Superior Court of Pennsylvania, 1964)
Commonwealth v. Collemacine
239 A.2d 296 (Supreme Court of Pennsylvania, 1968)
Commonwealth v. Dessus
224 A.2d 188 (Supreme Court of Pennsylvania, 1966)
Commonwealth v. DAWKINS
264 A.2d 722 (Superior Court of Pennsylvania, 1970)
Commonwealth v. Dunnick
202 A.2d 542 (Superior Court of Pennsylvania, 1964)
Commonwealth v. Silverstein
284 A.2d 773 (Supreme Court of Pennsylvania, 1971)
Commonwealth v. Kirk
17 A.2d 195 (Supreme Court of Pennsylvania, 1940)
Commonwealth v. Musto
35 A.2d 307 (Supreme Court of Pennsylvania, 1943)
Com. of Pa. v. Streets
172 A. 31 (Superior Court of Pennsylvania, 1934)
Maginnis's Case
112 A. 555 (Supreme Court of Pennsylvania, 1921)
Commonwealth ex rel. Riggins v. Superintendent of Philadelphia Prisons
263 A.2d 754 (Supreme Court of Pennsylvania, 1970)
Commonwealth v. Danner
79 Pa. Super. 556 (Superior Court of Pennsylvania, 1922)
Commonwealth v. Brownmiller
14 A.2d 907 (Superior Court of Pennsylvania, 1940)
Commonwealth v. Kirk
14 A.2d 914 (Superior Court of Pennsylvania, 1940)

Cite This Page — Counsel Stack

Bluebook (online)
56 Pa. D. & C.2d 147, 1972 Pa. Dist. & Cnty. Dec. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-schwartz-pactcomplphilad-1972.