457 Pa. 317 | Pa. | 1974
Lead Opinion
Opinion by
Appellant, James E. Myers, was indicted in 1969 on charges of murder and aggravated robbery. Due to numerous delays he was never brought to trial. On August 1, 1973, appellant filed an Application to Quash Indictments on the ground that he had been denied his right to a speedy trial. After a hearing on the application and án oral motion for habeas corpus on the same
It is unquestionably the law that a defendant may appeal only from a final judgment of sentence and an appeal from, any prior order will be quashed as interlocutory. A denial of a motion to quash an indictment is such an interlocutory order and an appeal therefrom will be quashed. Commonwealth v. Bunter, 445 Pa. 413, 418, 282 A.2d 705, 707 (1971), citing Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954). In Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967) this Court, using this rationale, disallowed an appeal from a refusal to quash an indictment attacked on grounds of double jeopardy.
Although both the Bunter case and the Kilgallen case allowed the appeals despite their interlocutory character, neither case is controlling here. The Bunter Court, faced with a record devoid of any hearing by the court below on the speedy trial issue, remanded the case with the direction that such a hearing be held in order to properly preserve the issue for subsequent appellate review.
The Court in the Kilgallen case permitted the otherwise interlocutory appeal because the case involved ex
In the instant case where there was a hearing below on the issue of speedy trial and the only question is whether the Order resulting from that hearing should be reviewed now or upon completion of the trial and rendering of the judgment of sentence, we cannot say that “denial of immediate review would render impossible any review whatsoever of [the] individual’s claim,” United States v. Ryan, 402 U.S. 530, 533 (1971). There is nothing here to contradict our conviction that appellant’s right to a speedy trial can be adequately protected in review following trial.
The motion to quash the instant appeal is granted and the matter is to be remanded for trial forthwith.
But see, United States v. Lansdown, 460 F.2d 164 (4th Cir. 1972).
The fact that the court in part entertained the matter as a writ of habeas corpus does not alter this result. While denial of habeas corpus is generally reviewable, Act of May 25, 1951, P. L. 415, §7, 12 P.S. §1907, it cannot be used to circumvent normal appellate procedures.
Commonwealth ex rel. Nichols v. Lederer, 193 Pa. Superior Ct. 482, 486, 165 A.2d 711 (1960).
“We have interpreted [§7] to mean that it was not intended to change the law stated in Commonwealth ex rel. Stingel v. Hess, 154 Pa. Superior Ct. 639, 36 A.2d 848, to the effect that there is no right of appeal from an interlocutory order. Commonwealth ex rel. Tiller v. Dye, 177 Pa. Superior Ct. 388, 110 A.2d 748.”
Dissenting Opinion
We dissent. In our view, this Court should reach the merits of appellant’s claim, raised by a petition for habeas corpus, that he was denied his constitutional right to a speedy trial. See Act of May 25, 1951, P.L. 415, § 7, as amended, 12 P.S. § 1907 (Supp. 1974).