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COMMONWEALTH v. GANT (12/12/68)

decided: December 12, 1968.

COMMONWEALTH
v.
GANT, APPELLANT



Appeal from order of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, April T., 1963, No. 979, in case of Commonwealth of Pennsylvania v. Bernard Gant.

COUNSEL

John Packel, Assistant Defender, with him W. Bourne Ruthrauff and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins and Hannum, JJ., absent). Opinion by Hoffman, J. Wright, P. J., and Jacobs, J., would quash the appeal.

Author: Hoffman

[ 213 Pa. Super. Page 429]

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. 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 (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 liberty by this prosecution merely because its suspension permits him to go 'whithersoever he will.' The pendency of the indictment may subject him to public

[ 213 Pa. Super. Page 430]

    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, requires 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 ...


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