Com. v. Leaming

• Decision Date: 18 March 1971
• Parties: COMMONWEALTH of Pennsylvania v. Joseph LEAMING, Appellant.
• Court: Pennsylvania Supreme Court

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275 A.2d 43 442 Pa. 223 COMMONWEALTH of Pennsylvania
v.
Joseph LEAMING, Appellant. Supreme Court of Pennsylvania. March 18, 1971.

[442 Pa. 224] Leonard Turner, Louis S. Cali, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Carl B. Feldbaum, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant, Joseph Leaming, was convicted of first degree murder following trial by jury and sentenced to life imprisonment on February 28, 1967. This Court subsequently reversed the judgment of sentence and remanded the case for a new trial because of the introduction at the first trial of an unconstitutionally obtained confession. ¹ Although the judgment was reversed on November 12, 1968, there has as yet been no retrial and appellant presently maintains that this delay prior to retrial violates his constitutional

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right [442 Pa. 225] to a speedy trial. Under the circumstances presented, we must agree.

The pertinent chronology is as follows. When appellant appeared for a new trial on February 28, 1969, the Commonwealth applied for a nolle prosequi. Appellant opposed the application and moved for immediate trial. The trial court denied both the application for a nolle prosequi and the motion for immediate trial and ordered the case put on a deferred indictment status for a period not to exceed six months. On September 15, 1969, appellant's case was again listed for trial. The Commonwealth renewed its application for a nolle prosequi, and appellant renewed his demand for trial. The trial court granted the nolle prosequi on the same dage, and the present appeal was taken from that order.

We must address ourselves initially to the question of the appealability of the order granting the nolle prosequi. The Commonwealth asserts that the order is interlocutory, noting that appellant could raise his speedy trial claim if and when the Commonwealth petitions the trial court to remove the nolle prosequi and that the necessity for our review of the speedy trial issue would disappear altogether if appellant were to win an acquittal upon retrial.

To the extent that the constitutional guarantee of speedy trial reflects a desire to minimize the degree to which pretrial delay hampers an accused's ability to defend himself, appellant would indeed have an adequate opportunity to secure relief by appealing any subsequent conviction on...