Appeals from orders and judgments of Court of Quarter Sessions of Philadelphia County, Nov. T., 1968, Nos. 173 to 179, inclusive, in case of Commonwealth v. Anthony DiPasquale.
Richard A. Sprague, First Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, Arlen Specter, District Attorney, William C. Sennett, Attorney General, for Commonwealth, appellant.
Alvin B. Lewis, Jr., President, for Pennsylvania District Attorney's Association, amicus curiae.
G. Fred Di Bona and A. Charles Peruto, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result.
These appeals are taken by the Commonwealth (1) from the Order of the Court of Quarter Sessions of Philadelphia denying the motion of the Commonwealth (a) for a continuance and (b) for a nolle pros, and also (2) from the entry of verdicts of not guilty at the trial.
Appellee was charged, along with two others, on seven bills of indictment for murder, manslaughter and conspiracy. The case arose out of shootings and killings alleged to have occurred on June 17, 1966, at the headquarters of the Philadelphia teamsters union offices.
Appellee's case was listed for trial six times prior to March 11, 1968, and on each date was continued by the lower Court upon the request or motion of the District Attorney. Moreover, appellee's prior habeas corpus petition for an immediate trial on the ground that he was being denied his Constitutional right to a speedy and public trial -- Sixth Amendment to the Constitution of the United States and Article I, Section 9, of the Constitution of Pennsylvania -- was denied by the lower Court.
Appellee's case was listed for trial on March 11, 1968, by the Court Administrator of the Common Pleas Courts of Philadelphia. When the case was called for trial in the proper Court, the District Attorney informed
the trial Judge that the Commonwealth had only one witness, namely Boyesky, who could incriminate the defendant, and that Boyesky had informed the District Attorney that he would repudiate the statement he had made to the police in which he incriminated the defendant, and that if called as a witness he would plead the Fifth Amendment.
Counsel for Boyesky then stated to the Court that he had advised his client (1) that he could take the Fifth Amendment, since the incriminatory statement his client had given to the police was untrue, and (2) that his client, if called as a witness, would "disavow" his above-mentioned statement. Boyesky's counsel further stated to the Court that on January 4, 1967 (a) he had informed the District Attorney by letter that his client would refuse to support the statement he had made to the police, and (b) he had thereafter frequently reiterated that position to the District Attorney. Furthermore, there were apparently several meetings ...