*1 ant choose as fear might testify (such being or confused misunderstood a to ar- general inability rendered ticulate) silence appellant’s prior consistent, or at least not with his later inconsistent, testimony.
Nor was the error
in
harmless
this case. Although
the prosecution was able to muster a
deal of
good
evi
the defense was based on certain
dence,
inconsisten
cies
witnesses’ testimony.
lengthy summary
at the
of this
beginning
reveals that
this case
opinion
was a battle of
with the three
credibility
complainants
on one side5 and the
on the
appellant
other. When
is the
of a
credibility
cornerstone
even
seemingly
innocent or minor errors that
might
tend
diminish
the defendant’s
in the
credibility
mind will be
jury’s
There
cautiously viewed.
is the additional element that
case the
this
second trial was not the
result
a legal
but rather
In
technicality,
hung jury.
these cir
cumstances
are not
convinced
beyond
reasonable
doubt
the error was harmless.
Harrington
United States,
remanded trial. new J., took no J., part Wright, Spaulding, the consideration or decision this case. testimony police officers is consistent with both They eyewitnesses simply sides’ stories. were not but testified to complainants necessary
what told them. It is thus not to dis police appellant. believe the officers believe Appellant.
Commonwealth v. Rucco, *2 March 1974. Before Argued J., Watkins, Hoffman, Cercone, Price, Van Jacobs, der Voort, JJ. Spaeth, ap-
Clyde Public Defender, Assistant Waite, W. pellant.
Stephen Attor- First Assistant Harris, B. Attorney, for ney, Kenneth Biehn, him G. appellee. 1974: J., Opinion Hoffman, denying appellant’s appeal from an Order This is an alleged quash vio- on an indictment based motion to the sub- rule.”1 do not reach We lation from an clear that the for it is stantive issue quashed. order and must exception classes those With *3 jurisdiction Supreme and of the the exclusive are within juris- appellate this court has Courts, Commonwealth appeals courts from orders of “all diction over final Appellate pleas.” Court Act, of common Jurisdiction July §211.302 Art. P. L. 1970, 673, 223, Ill, 31, jurisdiction appellate added). (emphasis Our extends only (a) appeal an an from orders where: non-final Appellate interlocutory order is authorized law: (a), supra, §501 §211.501 17 P.S. Act, Court Jurisdiction (a); (b) court has certified the issue involved a lower interlocutory controlling question “a order as ground substantial differ- as to which law appeal opinion an and that immediate from the ence materially may advance the ultimate termination order (b), (b); §501 §211.501 .”: 17 P.S. Id., . . of matter objection appellee an (c) has waived to the or, Appellate jurisdiction court: Court Jurisdiction §211.503(a). §503(a), Eegarding supra, 17 P.S. Act, 428, 1 1957, §1, 28, 19 §881. P. L. P.S. of June Act 250 over jurisdiction
the latter
two instances
in our discretion
may,
from
orders,
not have
do
We
jurisdiction.
refuse to exercise
the lower
because
in the instant case
that discretion
“a con-
involving
not certified
case
court has
has specifi-
and the appellee
law”
trolling question
We
this appeal.
our
over
jurisdiction
cally objected
appeal
if the instant
only
have jurisdiction,
therefore,
an inter-
or if
an appeal
from a final order
it is
law.
authorized by
order which is
locutory
does
a crime
charged
an individual
Normally,
trial and convic
before his
right
appeal
not have
and sentence.
until
judgment
or thereafter
tion,
A. 2d 780
379 Pa.
108
315,
v. Kilgallen,
Commonwealth
“requiring
circumstances
Extraordinary
(1954).
may justify
human rights”
of basic
safeguarding
Trunk,
v.
rule. See Commonwealth
relaxation of this
Kil
v.
Commonwealth
which is an is one which interlocutory order is authorized law. based by argument Act of P. L. That 19 P.S. 428, §2, §881. act a of the 180 provides that when there is violation “no have court this state shall rule, any longer jurisdiction that argues [of action].” from since the act a an an jurisdictional is one, appeal order under the act raising jurisdictional question should be need whether act allowed. We not decide jurisdictional one or not purely for, assuming it an is, from order is not au- appeal thereunder thorized law. from orders by Appeals interlocutory jurisdiction in civil raising questions actions at law are authorized equity by Act March 5, L. 12 P.S. is no 23, §1, There similar au- §672. for thorization orders interlocutory criminal proceedings.
This appeal quashed without prejudice appel- lant’s on right to raise issue direct should appeal a conviction be returned.
Dissenting Opinion Van dee J.: Vooet, filed the Court Common appellant Pleas County October Bucks, Motion to 18,1973, an Indictment him Dismiss charging burglary, larceny and stolen receiving goods, grounds that had been brought to trial upon the indictment after notice had been given to the Dis- County trict asking disposi- within that time. The trial tion court refused to dis- the indictment this appeal miss followed.1 I would By entertaining deciding this would not whether is an lower court one Order or a final one. *5 252 about bringing interest of matter in the
decide the case. earlier conclusion to this time serving the was Appellant At a time when Pennsyl- at Dallas, Institution the State Correctional of Attorney the he notice upon served vania, trial prompt of Bucks that wanted the County and receiv- larceny of burglary, charges three upon (3) No. one at No. 2162 of 1971, one at goods; stolen ing notice of This at No. 2271 1972. of and one of Following receipt 1973. January 23, was served the listed notice, the Appellant’s 19, 1973, 2162 of 1971 on March at No. case trial the notice.2 days after (56) fifty-six that being not to togo Defendant elected set, On the date on the indictment to moved quash trial but instead been afforded preliminary had not that he grounds the motion granted quash The Court hearing. upon was rearrested March 1973. 19, hearing given preliminary was charge, the same indictment No. 639 1973. a new re-indicted under for trial on indictment listed the second was Trial upon 1973. October asked for the trial occurred,
Before why a rule to cause indictment show granted and was on the basis the notice dismissed not be should first indictment at No. relating had been served after court, The trial hearing, discharged of 1971. rule. Assembly L. The Act rule” establishing provides P.S. 881 §1, follows: “(a) Whenever any part per- in principal term of any imprisonment any has entered son or correctional municipal penal insti- county state, and whenever during of this tution (2) Disposition two the other indictments at No. 2270 and appeal. in this are not concerned imprisonment pend- continuance the term of any ing untried this Commonwealth brought against any prisoner, to trial he shall such eighty (180) after he shall one hundred Attorney of to the District caused be delivered have County pending and the in which the indictment *6 place im- appropriate of the of court notice his written disposition prisonment request for to and his good That for be made of the indictment: Provided, prisoner open in the counsel his court, cause shown having jurisdiction being present, of the mat- the court any necessary may grant or reasonable continu- ter . . .” ance. objective give one im- of this enactment to charges pending way against
prisoned other are whom after to case tried he asks the have his Attorney opportunity. receipt for such After District day request the rule of for trial under it is cus- Attorney tomary in for to indicate or on the the District way conspicuous early in some the need for indictment op- to the Defendant chooses decline his Where trial. bring early portunity trial and elects to about a in disposition the indictment another manner the no- prompt requesting trial comes an end. With tice by Attorneys myriad the of cases handled District the rightfully expect the law cannot Attorney day to transfer 180 rule notices District the disposed has been ato an indictment new by Jury. a different Grand as named In indictment after the new indictment was returned instant the nothing notify Defendant did the at No. Attorney disposition that wanted with- the days. nothing in the Furthermore, record to indi against Appellant the was, the that cate pending “during by statute, the the required continu imprisonment.” term record shows ance on released bond on April 19, that was Appellant and the indictment was returned April 6, new record that From all indications shows 1973. on 1973 indi Appellant’s April ended imprisonment not thereafter was cating qualified to call rule.”3 day upon provisions be affirmed. The order below should in this dissent. joins Price, J., v. James cites case of Commonwealth Lee Hinton, 298, 299 and 2758 of 1972 in the Criminal Division at Nos. by County, Court of of the Common Pleas Bucks affirmed our being Court Per Curiam November 1973 with certiorari de Pennsylvania Supreme April 9, nied Court 1974. In Hinton, the Defendant was first indicted at Nos. 298 299 of He notice of the 180 demand in 1972. served and while these pending, the dictments were secured a in new original complaint dictment based its at of 1972 con charges taining the indictment at 299 identical of 1972. The quash any Defendant Hinton never elected of the indictments. prison clearly distinguishes all of the He was time. This Hinton *7 from the ease at bar. Reference to Hinton should not be made with pointing postpone out that the Defendant in that out case moved to contrary which action is the trial of his so to his demand nullify request the 180 rule as to under for trial within 180 days. However, regarded the trial court indicates that it the De merely suspension running as a motion fendant’s of the 180 during day period postponed. the number of that the case was
Freeman, Appellant, et al. Terzya,