Com. v. Lee, 1514

• Court: Superior Court of Pennsylvania
• Citation: 246 Pa.Super. 294,369 A.2d 1329
• Docket Number: No. 1514,No. 1530,1514,1530
• Parties: COMMONWEALTH of Pennsylvania v. Edward S. LEE, Appellant (at). Appeal of Ronald LEWIS (at).
• Decision Date: 17 March 1977

Page 1329

369 A.2d 1329 246 Pa.Super. 294 COMMONWEALTH of Pennsylvania
v.
Edward S. LEE, Appellant (at No. 1514).
Appeal of Ronald LEWIS (at No. 1530). Superior Court of Pennsylvania. Argued Sept. 22, 1976.
Decided Feb. 18, 1977.
Rehearing Denied March 17, 1977.

[246 Pa.Super. 296] Nolan N. Atkinson, Jr., Philadelphia, for appellant at No. 1514.

Eugene H. Clarke, Jr., Philadelphia, submitted a brief for appellant at No. 1530.

Page 1330

Mark J. Biros, Philadelphia, with him J. Donald McCarthy, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

These appeals are taken from the refusal of the Philadelphia Court of Common Pleas (1) to dismiss the September Term, 1975 indictments against defendants Ronald Lewis and Edward S. Lee on the basis of Rule 1100, Pa.R.Crim.P., 19 P.S. Appendix, and (2) to quash those and the November Term, 1975 indictments on the basis of Commonwealth v. Levinson, 239 Pa.Super. 387, 362 A.2d 1080 (1976). The lower court certified these two questions to us pursuant to the Act of July 31, 1970, P.L. 673, No. 223, Art. V., § 501; 17 P.S. § 211.501(b) (Supp.1976), which gives this court discretion to allow an appeal from an interlocutory order when the lower court is of the opinion that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the matter.

The Rule 1100 question is an inappropriate one for resolution on interlocutory appeal. As we stated in [246 Pa.Super. 297] Commonwealth v. Bennett,236 Pa.Super. 509, 516, 345 A.2d 754 (1975):

'The purpose of the speedy trial rule is to make sure that defendants receive trials as quickly as possible both for their own satisfaction and in order to preserve the evidence so as to minimize prejudice at trial. Appeals from pretrial orders would in many cases only retard this process. If such appeals were allowed, those defendants who had their claims for speedy trial denied by the trial court and rejected on appeal might not have a trial for a year or more. As to those defendants who have valid claims, while they may have to endure the hardship of trial, at least relief can be had after trial. Balancing these considerations, we conclude that we should not allow a defendant to appeal to this court in this type of case . . ..'

As Rule 1100 was formulated to protect the right to a speedy trial, the logic of Bennett is equally applicable here. Accordingly, we will not exercise the discretionary jurisdiction that 17 P.S. 211.501(b) gives us in this question.

Turning to the second question certified for our determination, Levinson, supra, held that on the particular facts of that case the unauthorized substitution of six jurors on the January 1974...