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COMMONWEALTH v. DITZLER ET AL. (06/11/70)

decided: June 11, 1970.

COMMONWEALTH
v.
DITZLER ET AL., APPELLANTS



Appeals from judgments of sentence of Court of Common Pleas of Lebanon County, No. 66 of 1965, in case of Commonwealth of Pennsylvania v. Charles G. Ditzler et al.

COUNSEL

Frederick S. Wolf, and Beaver, Wolf & Brandt, for appellants.

Joseph C. Mesics and George E. Christianson, Assistant District Attorneys, and Alvin B. Lewis, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Montgomery, J., joins in this dissenting opinion. Dissenting Opinion by Spaulding, J.

Author: Per Curiam

[ 217 Pa. Super. Page 106]

Judgments of sentence affirmed.

Disposition

Judgments of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Judge Spaulding's able opinion, which appears below, sets out at length the facts of this case. These facts present the question whether appellants were denied their right to a speedy trial. Judge Spaulding answers this question with care and insight. He concludes that, because appellants were denied their right, the case should be remanded to determine whether the denial was intentional. Because I differ with respect to the purpose of the remand, I write this brief opinion.

[ 217 Pa. Super. Page 107]

Upon review of the record, I find that appellants did not come within either the Act of June 28, 1957, P. L. 428, §§ 1, 2, 19 P.S. §§ 881, 882, nor within the Agreement on Detainers, Act of September 8, 1959, P. L. 829, 19 P.S. § 1431 et seq. Accordingly, appellants' claim must rest upon constitutional error. Since their cases arose before the Supreme Court opinion in Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988 (1967), they must show "evidence of actual prejudice" from the state's delay in bringing them to trial, even when that delay is intentional. Dickey v. Florida, 398 U.S. 30, 38, 90 S. Ct. 1564, 1569 (1970).*fn* No record has been made which would allow us to determine whether actual ...


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