*1 A.2d 848 Pennsylvania COMMONWEALTH v. REINHART, Appellant.
Dale H. Pennsylvania. Supreme Court of Argued Oct.
Decided March *3 Defenders, Anthony Urban, Balitas, Public J. D.W. appellant. Pottsville, for Bavolack, Adam D. Russell, Atty.,
Richard B. Dist. appellee. Pottsville, Atty., for First Asst. Dist. O’BRIEN, EAGEN, ROB- J., JONES,
Before C. MANDERINO, JJ. POMEROY, ERTS, NIX 594 OF THE
OPINION COURT ROBERTS, Justice. appeal,1 presented is
In this we are with three arising prosequi: sues from the nolle of a 314(a),2 provides which that trial court Pa.R.Crim.P. Appellate authority Juris- 1. We hear case under of the Court this II, 31, 1970, § July diction Act of P.L. art. Act P,S. id., V, § (Supp.1975); 503(a), § § 17 211.- P.S. 17 211.205 art. 223, 225-26, 503(a). Learning, See 442 Pa. Commonwealth v. (1971): A.2d initially question of the “We the must address ourselves granting prosequi. The appealability of order the the noting interlocutory, asserts order is Commonwealth the appellant speedy if when that the could raise his trial claim and petitions trial court remove speedy necessity our and that for review disappear appellant win altogether trial if were to issue would acquittal upon an retrial. guarantee speedy “To the extent that the constitutional pretrial degree trial a desire to which reflects to minimize himself, appellant delay hampers ability defend an accused’s adequate opportunity to relief would secure indeed have ground prejudi- subsequent appealing any conviction However, guarantee much delay. speedy cial is also ‘anxiety ac- limiting period of and concern concerned with Ewell, U. companying United States v. accusation.’ and, 116, 120, 773, 776, (1966), S. 15 L.Ed.2d 86 S.Ct. appeal regard, quashing little sense. the instant makes this position for the the logic The possibility allows the Commonwealth’s under be forced live will years, appellate pending shadow review after of a indictment and: expiration potentially trial at such a intervening remedy long period provide can no effective anxiety Accordingly, if even the nolle and concern. interlocutory, particular order be nature *4 presents ‘exceptional dictating appealabili- issue circumstances’ ty.” 417, 705, Bunter, 413, 282 A.2d Cf. v. 445 Pa. interlocutory (motion quash appealable or- (1971) indictment Barber, 738, der). Pa. A.2d 855 But cf. Commonwealth v. quash appealable order). (1975) (motion indictment not note, appellant disapproval, the Com- neither nor We with that required jurisdictional in provided statement monwealth has Pa.Sup.Ct.R. 47. the briefs filed in this Court. See 314(a): Pa.R.Crim.P. Commonwealth, attorney “(a) Upon application of for court, prosequi notwith- may, open order a nolle in the court any objection person.” standing grant upon Commonwealth, a nolle may, request any person,” prosequi “notwithstanding objection appellant Constitution; (2) was valid the Federal under process the Federal Constitution denied due under law prosequi; and grant trial court’s abuse of the trial of a was court’s discretion. drinking February 1972, 1, after hours
On several Police, agents Pennsylvania with State undercover other Joseph he and two Francis Bowers confided that burglary-murder of John men had in the been involved again agents in L. Miller June of 1969. A week later partici- again sought Bowers, his out once admitted who pation complaint filed in the was crime. A criminal on against 1972, indicted 8, and he was Bowers on March July 13,1972. gave police in state- a formal
While Bowers prison, implicating Kemmerling, one himself, ment Schneck one complaints appellant in Miller’s murder. Criminal they 1972, against 27, the three on were filed June 4,1972. were indicted October July appellant appointed in was to defend
Counsel on counsel, the case however, 1972. This withdrew from indicted, 2, days appellant was October two before replaced by The case was and was defender. time the called for trial on at which November court, open defender, appellant’s objection moved over ready go to trial. he a continuance because was granted, trial scheduled continuance was with January 1973. appel- did proceeded quickly more than case
Schneck’s jury A case lant’s. sworn Schneck’s Bowers, only link both able to witness charged called crimes Schneck and asserting si- testify, remain but refused to surprise, caught by was un- Commonwealth, lent. The *5 596 a prove either unable to
able to its case and was obtain acquitted. prosequi. was continuance or a Schneck being appel- jury to hear At selected this time a was yet sworn. Bowers lant’s case had not been When but testify 8th, trial on refused to in Schneck’s granted con- a short asked for and was Commonwealth appellant’s Bow- tinuance in to determine whether testify a again ers refuse to if called as witness would appellant’s During Bowers, at- continuance case. torney attorneys conferred. for the Commonwealth testify ap- indicated that he refuse to Bowers would pellant’s trial. following day, appellant’s trial resumed the Jan-
When continuance, requested uary 9th, a the Commonwealth testimony, alleging Bowers’ not, could without prima prove denied. facie This motion was case. requested prosequi. After then a nolle hearing argument appellant and the Common- from both granted. wealth, In its written the nolle 314(a) court, relying opinion, the trial on Pa.R.Crim.P. DiPasquale, 431 Pa. 246 A.2d and Commonwealth v. (1968), of the nolle stated that Ap- proper awas exercise of the trial court’s discretion. pellant prose- appeals granting the nolle from order qui. constitutionality
Appellant challenges of Pa. 314(a). “not R.Crim.P. on the His attack seems to focus objection portion any person” withstanding the (a), appellant quoting rule. After states: rule “By language, rule on all its’ closes door [sic] attorney gives defendants and to the Common- prosecute wealth the exclusive and or sole ig- prosecute. rights completely Defendant’s are provisions any processes nored. There are no Clearly process.” a denial of due defendant’s behalf. Appellant Brief for at however, case, In this the record shows present objections court be- permitted to the trial *6 granted. clear, there- prosequi fore the was It is nolle interpret fore, the “notwith- that the court trial did person” language bar standing objection any the of allege argument. that the trial such does Nor making opportuni- ignored arguments, the court thus ty present meaningless. The record shows them the consider the merits trial court indicated would appellant’s argument for this there no Court and is basis to conclude that it did otherwise. perfectly con-
The trial court’s this case was action merely language challenged sistent rule. The with the abso- means that criminal not have an a defendant does nolle motion for a lute to be tried on demand. A pre- any is like other motion: one side treated argue court; the merits sents the motion to the both sides motion; merits of requested of the court considers ruling. arguments; their the trial court issues a and way presentation objections The rule in no bars the ignore trial defendant nor does it direct the court objections. merely It the defendant’s those states objection dispositive is not of the issue. appellant’s grant a now turn to claim that
We apart validity of the denied prosequi, rule, from primarily process Appellant him on due of law.4 relies 988, Klopfer Carolina, v. North 87 S.Ct. U.S. (1967), L.Ed.2d 1 held that the sixth amendment which guarantee speedy applicable the states of a is through the fourteenth amendment. steps: analyzed in
A trial claim is two (1) delay sufficiently long trigger “ne is itself cessity go inquiry other factors that into into Pa.Const., I, Appellant § no either art. 4. asserts claim under therefore, We, nor these under Pa.R.Crim.P. do not address issues. length delay, balancing balance,” a and right delay, reason for defendant’s assertion prejudice to the defendant.6
Appellant 1972, was indicted October appel- begin 1972. When scheduled to November 15, 1972, appellant’s called on lant’s case was November granted, public defender, requested and counsel, the the Janu- appellant’s objection, continuance until over January ary for trial on court The case was called term. January 8, granted 5, 1973, prosequi was and the nolle The issue must decide whether we pro appellant due 8 denied *7 right speedy trial. by denying to him his a
cess of law cir light in of the facts and must consider this issue We January cumstances extant on 8th.7 prose nolle delay indictment to The total from day days.8 qui was that a 93 93 do not believe We 2192, 2182, 514, 530, Wingo, 33 L. 5. Barker 407 92 S.Ct. v. U.S. (1972). Ed.2d 101 530-33, 6. Id. at 92 2192-93. S.Ct. at 8, January 7. A after decision reflected facts and events which 1973, speculate after require what occurred either to would us appropri- an is that date or to evidence Neither take ourselves. activity appellate ate for an court. 1973, 8, January changed If the has between situation pre- present, a 304 to make free under Pa.R.Crim.P. This relief. application quash other trial to the indictment or for no there was distinguishes Klopfer in which factor this from case outstanding charges either way by Klopfer which could have tried or dismissed. Court, lapse time Appellant, in brief this details his with participa- knowledge alleged of his between the Commonwealth’s not consider We do in and his indictment. tion Miller’s murder trig- delay determining was sufficient this time whether protection speedy ger analysis the full Barker because delay be- only by applies afforded the Federal Constitution tween indictment and trial. recently the constitutional Supreme held that “The Court trial, by Sixth Amendment right speedy guaranteed to a Amendment by Fourteenth applicable states and held to the delay prosecutorial protects only defendants from Marion, 404 U. States v. United between indictment S. trial. 307, 455, (1972). Court’s deci- L.Ed.2d 468 92 S.Ct. delay9 speedy in- trigger is sufficient the full quiry charge major felony.10 when the involved is a We grant prosequi therefore hold that of nolle on a Janu- ary 1973, deny appellant 8, did not to a delay sufficiently long trial because the involved was not presumptively prejudicial. to be appellant argues
Finally, court that the trial Ap by granting prosequi. abused its discretion pellant go to relies on the Commonwealth’s readiness 15, 1972, re trial on when the defender November quested continuance, a and its of that read reaffirmance Ap January iness on when the case called. pellant concludes discretion that trial court abused its by believing statement, the Commonwealth’s on prove prima could not facie case and granting disagree. prosequi a nolle on that basis. We
A trial a nolle will court’s appeal appears overturned be unless it to be Pennsylvania abuse of discretion.11 indicates law request there are two factors to be considered when a given by reason is made: is the large part presence sion in Marion on the of statutes rested designed protect against pre-indict- of limitations defendants ” delay ment . . . Cardonick, 322, 333, Commonwealth (1972). 292 A.2d v. Pa. *8 analysis purposes determining 9. For whether the full Barker applied delay should be and we take the total between indictment grant prosequi. the of the nolle This initial determination looks only trigger delay. delay to the If the to amount of is sufficient analysis, may delay the full we the then look to the causes of appellant’s speedy rights in- determine whether have been trial Townsend, Court, fringed. Superior 1100(d); Cf. Pa.R.Crim.P. v. 774, 251, Cal.Rptr. (1975) 15 Cal.3d 543 Crim.L. 126 P.2d 607 [18 Rptr. (1975)]. 2368 531, 2182, 2192, Wingo, 514, 10. See Barker 407 33 v. 92 S.Ct. U.S. (1972). L.Ed.2d 101 431, 536, 541, DiPasquale, 11. 246 A.2d 432 Commonwealth 431 Pa. (1968): pros grant petition a for a “The or refusal a for nolle and court, continuance lies the sound discretion of the lower within and its action will not be reversed in the absence of an abuse of discretion.” 600 prosequi requesting nolle valid
Commonwealth defendant, the time at reasonable,12 and does speedy trial requested, have a valid is nolle claim?13 appellant not already did
We have determined Therefore, if have trial claim a requesting the reason for a valid Commonwealth had upheld. prosequi, be the trial court’s action will clearly surprised by Bowers’ The Commonwealth was they have testify; never would refusal otherwise Because empaneling jury in the case. a Schneck risked unavailability of Bowers’ surprised it the sudden was representations preparedness testimony, earlier negligent at- regarded deliberate, or even cannot as be or to tempts or court to detective either unnecessary subject appellant delay or other burden. testify is Although refusal of a witness to unavailability of a wit completely analogous to the not delay. trial ness, for some nonetheless a valid basis v. Supreme stated Barker As the States Court United 2182, 2194, L.Ed.2d 92 33 S.Ct. 407 U.S. Wingo, (1972): 101 permissible delay or- have under would been
“[S]ome Manning be uti- dinary circumstances, could so that . . . .” as a witness Barker’s lized course, Barker’s case: Bowers of Manning, testify to do so because refused to co-defendant who ap- delay implicate Court himself. would try necessary ordinarily proving was the time invalidating his claim witness, the reluctant thus convict privilege. Leaming, 43 442 Pa. A.2d 12. See Commonwealth v. Learning we because (1971). found its case for vacated the nolle In we grant We remanded be abuse of discretion. that, or, failing final dismissal “prompt Appellant Learning be relief to the charges.” here is entitled justifying substantially presents different facts record cause the the prosequi. DiPasquale, See, Pa. A.2d g., v. e. (1968). *9 Because speedy did have a valid claim when granted the nolle and because proper it, had a for requesting reason appellant’s a nolle in case was proper.
Order affirmed.
MANDERINO, J., joins opinion in this con- files a opinion. curring POMEROY, JJ.,
EAGEN and in the concur result. NIX, J., dissenting opinion. filed a NIX, (dissenting). Justice my judgment, majority perceive
In has failed to appellant’s process claim. I full thrust of due believe appellant’s position dis- to meritorious and therefore be sent. upon ques- majority
The members focused rights of the tion of a that the and concluded protected. regard adequately accused that were While troublesome, I I not find am do that result concerned given question ac- that no attention of an peers right upon cused’s his to insist trial before purpose seeking he been once has vindication charged formally crime. with process possible protection limited
The of due is not reputation against penal threats one’s interest. precious any is oft- interest and is as as individual industry gained only years and restraint.1 times after system permits reputation to sullied and be Where virtually through government’s unfettered stained pro- system must prosecution, also to initiate reputation.” spotless purest times afford “The treasure mortal II, I, Shakespeare, King Act Sc. Richard must depends opinion of the mob “He on the whose honour anxiety, greatest act and scheme day day strive with and in- mob is varied reputation. For the order to constant, retain carefully pre- reputation is not if a and therefore LVIII, Ethics, Prop. Spinoza, Note. quickly.” it dies served *10 person charged opportunity adequate vide the with an charges proved the to be unwar- exoneration where incapable ranted or of substantiation.2 objec- imposition pros, the the To allow of a nolle over right effectively accused, tion the the to forecloses imputation demonstrate the occa- fallaciousness by original prosecution. sioned the institution prosecution is possibility Even further fore- where stigma closed, the not of the caused accused is relieved by is termi- indictment. the action arrest and Where prosecutor by a nolle it is the decision of the pros, nated necessarily person the innocence of not brings his one has trial before about the result. Where affirmatively peers, opportunity to he is afforded demonstrate innocence. fully presumption cognizant
I of innocence. am realistically pre- that this all concede we must However, fully incapable removing sumption the stain. alone is provide reciprocal right process Due must also to person charged compel expose the Commonwealth charges scrutiny upon which the were basis supply testimony brought, and also a forum which may and eradicate offered to refute the accusations be impropriety. presumption of inno- suggestion prove guilt requires but cence the Commonwealth denying de- should not be construed as a basis affirmatively his inno- fendant establish cence.
MANDERJNO, (concurring). Justice opinion I which join in the of Mr. Justice Roberts prosecu- properly to whether the does not address itself appellant. any prosecute the may tion at future date ap- need this That is an issue which not considered be peal. provided adequate argued can it be that an redress
2. Nor mistakenly charged many may liability. In one be tort instances civil redress. yet have to him crime and available with