Commonwealth v. Gant

• Court: Pennsylvania Superior Court
• Writing for the Court: Author: Hoffman
• Citation: Commonwealth v. Gant, 213 Pa.Super. 427, 249 A.2d 845 (Pa. Super. Ct. 1968)
• Decision Date: 12 December 1968
• Parties: COMMONWEALTH of Pennsylvania v. Bernard GANT, Appellant.

249 A.2d 845

213 Pa.Super. 427

COMMONWEALTH of Pennsylvania v. Bernard GANT, Appellant.

Superior Court of Pennsylvania.

December 12, 1968.

Petition for Allowance of Appeal Denied March 4, 1969.

John W. Packel, Asst. Defender, Melvin Dildine, Chief, Appeals Division, Herman I. Pollock Defender, Philadelphia, for appellant.

James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J., and MONTGOMERY, JACOBS HOFFMAN and SPAULDING, JJ.

HOFFMAN, Judge.

In 1963 appellant was found guilty on charges contained in seven different indictments. As a result of a Post Conviction appeal he was awarded a new trial on February 19, 1968, on all convictions.

On March 22 1968, appellant appeared in the County Court of Philadelphia, at which time the Commonwealth, over appellant's objection and request for an immediate jury trial, was granted a nolle prosequi under Rule 314 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix. Appellant now maintains that he was denied his constitutional right to a speedy trial, as interpreted in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). See also Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968).

In Klopfer, the trial court entered a nolle prosequi 'with leave' on motion of the prosecutor and over the objection of the defendant. No justification for this motion was offered by the prosecution at that time. The United States Supreme Court held that this procedure violated defendant's right to a speedy trial under the Sixth Amendment.

This holding was based on the fact that 'the petitioner is not relieved of the limitations placed upon his (life and) liberty by this prosecution merely because its suspension permits him to go 'withersoever he will.' The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the 'anxiety and concern accompanying public accusation,' the criminal procedure * * * clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.' Klopfer, supra.

These same considerations apply in the instant case. The thrust of Klopfer is that no person should be forced to live under the shadow of a criminal indictment without the right to have a quick and final determination of his criminal responsibility. Otherwise, he will suffer anxiety and a feeling of helplessness from the knowledge that at some future time he may be subject to incarceration.

The Commonwealth mistakenly asserts, therefore, that Klopfer is inapplicable in the instant case because Pennsylvania, unlike North Carolina, rekquires subsequent court approval before a nolle prosequi may be vacated and appellant brought to trial. Klopfer is not concerned with the final disposition of a criminal accusation; its only concern is with the presence, for an unreasonable period of time, of an outstanding criminal charge. An accused's emotional distress and anxiety will not be mitigated by the requirement that there be court approval of a subsequent prosecution. The concern of the Supreme Court in Klopfer, therefore, is not avoided by this procedural safeguard.

We also reject the Commonwealth's argument that Klopfer is inapposite because it is restricted to a defendant who was a college professor who 'almost certainly will (be forced to curtail) * * * his speech, associations and participation in unpopular causes,' because of the threat of impending criminal prosecution. Undoubtedly, Klopfer did have First Amendment overtones, but it cannot be read only in that context. The Sixth Amendment guarantee of a speedy trial 'is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1960). Similarly, in United States v. Young, 406 F.2d 960 (1968), the Court of Appeals for the District of Columbia, after citing Ewell, stated that Klopfer stood for the proposition that 'Prolonging the anxiety and concern unreasonably and extending the oppression that may accompany criminal prosecution can sometimes constitute a denial of a defendant's right to a speedy trial.' The court found such a denial when the appellee was caused 'anxiety, concern and embarrassment from a five and one half month delay' attributable solely to the government's delaying tactics.

We recognize that the right to a speedy...