Com. v. Bunter
| Decision Date | 12 October 1971 |
| Citation | 445 Pa. 413,282 A.2d 705 |
| Parties | COMMONWEALTH of Pennsylvania v. Lawrence BUNTER, Appellant. |
| Court | Pennsylvania Supreme Court |
Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Philadelphia, for appellee.
Before BELL, C.J., and COHEN, EAGEN, O'BRIEN and POMEROY, JJ.
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 point in time appellant had approximately eighteen months left to serve on his federal sentence.
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 arraignment nor hearing prior to indictment; trial was not held within 120 days as provided by the Interstate Agreement on Detainers, Act of September 8, 1959, P.L. 829, 19 P.S. § 1431 et seq., and because Bunter's right to a speedy trial had ben abridged by the Commonwealth. On April 15, 1970, the motion to quash was heard and denied by the lower court and bail was set in the amount of $2000.
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 us to hold that the claim of a denial of speedy trial in this case raises an issue of basic human rights and hence is within the rule of the Kilgallen case. Such a conclusion is compelled by the recent decision of the United States Supreme Court in Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). Chief Justice Burger, writing for the majority, said that 'the right to a prompt inquiry into criminal charges is Fundamental and the duty of the charging authority is to provide a prompt trial.' 398 U.S. at 38, 90 S.Ct. at 1569 (emphasis supplied). The opinion also noted that past decisions of the Court (most notably Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) and Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)) had held that the right to a speedy trial is 'One of the most basic rights preserved by our Constitution.' 398 U.S. at 37, 90 S.Ct. at 1568 (emphasis supplied).
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, 431 (1959); Commonwealth v. Sutton, 214 Pa.Super. 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.Super. 382, 398, 124 A.2d 666, 674, 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
However, a review of the record compels the conclusion that this defect was cured by the lower court's disposition of the appellant's petition at the April 15, 1970, hearing. 5 It is settled law that (Citations omitted.) Commonwealth v. O'Brien, supra, at 399, 124 A.2d at 674. We find no such abuse of discretion in this case.
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, 18 U.S.C.A. § 3182, which permits extradition by certified affidavit from the demanding state as well as by a copy of an indictment found. This contention is devoid of merit.
As recently as last term in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971), we categorically rejected the absolutist position that our decision in Commonwealth v. Rose (Commonwealth ex rel. Magaziner v. Sheriff of Philadelphia County), 437 Pa. 30, 261 A.2d 586 (1970) should be interpreted as requiring a preliminary hearing in All cases.
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, 791 (1964) where it was said:
and directly alluded to by Mr. Justice Roberts in the McCloskey case, 443 Pa. at 129, 277 A.2d at 770 (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 criminal warrant is issued, Commonwealth ex rel. Sholter v. Claudy, 171 Pa.Super. 442, 90 A.2d 343 (1952); see also, Commonwealth v. Gallagher, 200 Pa.Super. 136, 186 A.2d 842 (1962).
It is also urged that the Interstate Agreement on Detainers, Act of September 8, 1959, P.L. 829, 19 P.S. § 1431 is made operative in this case by the Fourteenth Amendment and that as a result the indictment should be quashed because trial was not held within 120 days as that statute demands. 7
The salient point of this argument is that despite the fact that the United States ...
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...of right to a speedy trial); accord, Commonwealth v. Reinhart, 466 Pa. 591, 353 A.2d 848 (1976); see Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971) (plurality opinion) (motion to quash indictment due to asserted violation of right to a speedy trial appealable). Before an appeal is......