Commonwealth v. Bunter, Appellant.
Supreme Court of Pennsylvania
October 12, 1971
reargument refused November 9, 1971.
445 Pa. 413 | 282 A.2d 741
For these reasons I am able to concur in the order of affirmance.
Mr. Chief Justice BELL joins in this concurring opinion.
Commonwealth v. Bunter, Appellant.
reargument refused November 9, 1971.
J. Bruce McKissock, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE EAGEN, October 12, 1971:
This is an appeal from the order of the Court of Common Pleas of Philadelphia, Criminal Division, dismissing appellant‘s petition to quash the outstanding murder indictment against him. We vacate the order refusing to quash the instant indictment, and direct the trial court to conduct a hearing on the alleged denial of speedy trial.
The relevant facts may be summarized as follows: On February 13, 1967, the frozen, partially decomposed body of one Bernice Warder was found in the trunk of an abandoned automobile parked on a street in Philadelphia. Initial police inquiry disclosed that the victim was last seen alive on November 26, 1966, in the company of appellant, Lawrence Bunter. Later investigation led authorities to believe that Bunter was the prime suspect in the killing. Subsequently, appellant was found to be incarcerated in a federal prison in Virginia, having been convicted of crimes committed in the District of Columbia. On October 25, 1967, the Philadelphia Police Department lodged an arrest detainer for Bunter charging him with murder. At this
Over the course of the next year Bunter filed a series of pro se petitions with various titles in both United States District Courts for the Eastern Districts of Pennsylvania and Virginia, as well as in the Court of Quarter Sessions of Philadelphia County. At different times appellant charged that he was being denied a speedy trial, sought a writ of habeas corpus, prayed that the detainer be dismissed and asked for a change of venue. Some of these motions were ignored by the courts.1 One was returned because additional copies were required,2 and one was dismissed on the merits with instruction to appellant to seek the relief prayed for in the appropriate state courts of Pennsylvania.3
On April 17, 1969, appellant was indicted by the Philadelphia grand jury as a fugitive from justice on the charge of murder. After extradition proceedings, which were contested by appellant, he was returned to this state in November of 1969. Bunter‘s appointed counsel sought to have the indictment quashed on the grounds that: the bills as presented to the grand jury were defective; there had been neither preliminary ar
At the threshold we must meet the question raised by the Commonwealth‘s motion to quash this appeal on the grounds that it constitutes an attempt to appeal an interlocutory order.
In criminal cases, the general rule is that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed. Commonwealth v. Haushalter, 423 Pa. 351, 223 A. 2d 726 (1966); Commonwealth v. Byrd, 421 Pa. 513, 219 A. 2d 293 (1966); Commonwealth v. Novak, 384 Pa. 237, 120 A. 2d 543 (1956). Refusal by a court to grant a motion to quash an indictment is such an interlocutory order. Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d 780 (1954). However, as the Kilgallen case made clear, the rule prohibiting interlocutory appeal is not one of unyielding inflexibility. When there are special and exceptional circumstances, the defendant may appeal before his trial and conviction from the court‘s refusal to quash the indictment. One such exceptional circumstance is when an issue of basic human rights is involved.
In the instant case appellant contends that the Commonwealth deprived him of his right to a speedy trial by its unreasonable delay in allowing eighteen months to pass from the time the detainer was lodged to the time when he was finally indicted and sought to be extradited.
In light of our disposition of this case, we need not decide the merits of this allegation. It is enough for
Moreover, the motion to quash this appeal overlooks an important caveat to the general rule that no appeal will lie from the refusal of a motion to quash an indictment which is “unless it is defective on its face.” Commonwealth v. Fudeman, 396 Pa. 236, 240, 152 A. 2d 428 (1959); Commonwealth v. Sutton, 214 Pa. Superior Ct. 148, 150, 251 A. 2d 660 (1969).
A long line of Pennsylvania cases have held that “when a district attorney submits a bill [of indictment] to the grand jury without a preliminary hearing it is under the supervision of the court, and he must obtain permission of the court to submit the bill.” Commonwealth v. O‘Brien, 181 Pa. Superior Ct. 382, 398, 124 A. 2d 675, appeal dismissed, 389 Pa. 109, 132 A. 2d 265 (1957). The indictment here was initially defective because it is impossible to tell whether the presentment was done with leave of court.4
Appellant also contends that the fact that he did not receive a preliminary arraignment or a preliminary hearing should cause us to grant the relief requested. He assigns as support for this position prior case law, the present Pennsylvania Rules of Criminal Procedure and the District of Columbia extradition statute,
As recently as last term in Commonwealth v. McCloskey, 443 Pa. 117, 277 A. 2d 764 (1971), we cate
In the overwhelming majority of cases a criminal action commences with the appropriate prosecuting official‘s filing of a complaint. Preliminary arraignment and a preliminary hearing follow. This procedure, which can be viewed as the norm, has in the past admitted of certain exceptions, one of which being where the accused was a fugitive from justice.6
This traditional exception was reaffirmed in Commonwealth v. Coyle, 415 Pa. 379, 396, 203 A. 2d 782 (1964), where it was said: “A fugitive from justice need not be given a preliminary hearing and may properly be proceeded against by use of a district attorney‘s bill with the approval and under the supervision of the court. See Com. v. O‘Brien, 181. Pa. Superior Ct. 382, 124 A. 2d 666 (1956); Com. v. Hoffman, 396 Pa. 491, 152 A. 2d 726 (1959); Com. ex rel. Blackman v. Banmiller, 405 Pa. 560, 176 A. 2d 682 (1962).” and directly alluded to by Mr. Justice ROBERTS in the McCloskey case, 443 Pa. at 129 (1971): “The Rules of Criminal Procedure at present . . . do not . . . foreclose any of the other traditional exceptions to proceeding by a preliminary hearing.” As courts of this Commonwealth have pointed out, a defendant will be deemed to have impliedly waived the right to a preliminary hearing where he absents himself from the state when a crimi
It is also urged that the
The salient point of this argument is that despite the fact that the United States [and hence, the District of Columbia] has not signed this interstate compact, the Equal Protection Clause of the Fourteenth Amendment requires that Pennsylvania not discriminate in terms of granting a speedy trial between persons extradited from states that are signatories and prisoners coming from nonsignatory jurisdictions.
This argument must fail for several reasons. It is certainly true that Pennsylvania cannot deny to any person whom it has charged with committing a crime the right to a speedy trial. But with regard to prisoners extradited from certain states with which it has entered into prior agreement, the Commonwealth will accord the right to a speedy trial in a particularized manner, namely by following the provisions of the Detainer
Moreover, this statute providing for a 120 day period does not create a constitutional rule of thumb which measures the time boundary for a speedy trial. See and cf., United States ex rel. Krenkowitz v. Rundle, 317 F. Supp. 1378 (1970); United States ex rel. Bennett v. Rundle, 419 F. 2d 599 (1969).
The Equal Protection argument would have merit only if it could be shown that the Commonwealth was discriminating purposefully or intentionally between those whom it had charged with crime, granting to some a speedy trial while denying it to others. The Sixth Amendment is a guarantee to all who stand accused of crime. However, the Commonwealth is free to adopt various methods of implementing this right including a comity arrangement with sister states as a method of trying fugitives. And hence while it cannot be gainsaid that an accused must have a speedy trial regardless of such comity arrangements, it does not follow that there has been purposeful discrimination because such a trial is not provided under the terms of the interstate compact.
Nothing we have said to this point contradicts the fact that it is constitutionally unacceptable for the Commonwealth to formally accuse the defendant of murder by filing the detainer and then without good cause take no action for eighteen months. In Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575 (1969), the United States Supreme Court put to rest the frequently criticized but widely held view that a state bringing charges against a prisoner confined by another state or the Federal Government need make no effort to prosecute him until he is released from custody. We
It is self-evident and has been so held that “a prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.” Coffin v. Reichard, 143 F. 2d 443, 445 (6th Cir. 1944); cf. Commonwealth ex rel. Bryant and Goldstein v. Hendrick, 444 Pa. 83, 280 A. 2d 110 (1971). Hence it was by right and not by grace that Bunter asked for a speedy trial.
Neither the people of this state nor the appellant, Bunter, are well served by this sort of inaction on the part of prosecuting officials. A long delay may make it more difficult for the government to prove its charges beyond a reasonable doubt. On the other hand, appellant‘s ability to refute the charges brought against him may have been grievously affected. The touchstone must be that “[t]he right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality on the need to have charges promptly exposed. . . . Stale claims have never been favored by the law, and far less so in criminal cases.” Dickey v. Florida, 398 U.S. at 37.
Because the remedy for denial of speedy trial is dismissal of the charges, Commonwealth v. Clark, 439 Pa. 192, 195, 266 A. 2d 741 (1970) this case is remanded to the trial court for a determination of whether this right has been violated. Such a determination will involve appellant affirmatively showing that such delay, unreasonably caused by the Commonwealth, was oppressive and prejudicial, Commonwealth v. Ditzler and Ruhl, supra, at 80.
It is so ordered.
Mr. Justice JONES and Mr. Justice ROBERTS took no part in the consideration or decision of this case.
Mr. Justice COHEN took no part in the decision of this case.
DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
The
This question of the right to a speedy public trial has worried me for several years, especially because of the enormous backlog in Philadelphia of undisposed-of murder indictments and of other undisposed-of indictments for felonies. While considerable progress has been made by the District Attorney and the Courts of Common Pleas in reducing these backlogs, there are still, as of August 30, 1971, a total of 350 untried homicide indictments, which include 55 deferred cases. Not including the deferred cases, the range of time within which homicide cases come to trial after indictment, is from eight to sixteen months, with the “average” length of time about ten months. There are also presently 5,000 additional untried criminal cases in Philadelphia.*
* As of August 31, 1971, there was a total of 10,990 civil cases at issue and ready for trial (including both jury and nonjury
The aforesaid Constitutional provision for a speedy public trial is mandatory, but so is the Constitutional prohibitory mandate with respect to the establishment of religion, or prohibiting the free exercise thereof, or abridging of freedom of speech, or of the press, or the right to peaceably assemble as set forth in the First Amendment, or the defendant‘s right of confrontation (set forth in the Sixth Amendment). Yet none of these mandated or guaranteed Constitutional rights is absolute! I believe we should and must approach and decide these Constitutional provisions and issues realistically, as has been done by the Supreme Court of the United States in the recent cases of Illinois v. Allen, 397 U.S. 337, Mayberry v. Pennsylvania, 400 U.S. 455, and previously in Duncan v. Louisiana, 391 U.S. 145, and in Bloom v. Illinois, 391 U.S. 194. (See DeStefano v. Woods, 392 U.S. 631.)
The tidal wave of crime which is sweeping our Country has made a realistic interpretation an imperative necessity. On this basis and for these reasons, I disagree with the Majority Opinion and must dissent.
Commonwealth v. Loveday, Appellant.