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COMMONWEALTH v. LEAMING (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
LEAMING, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Philadelphia, May T., 1965, No. 795, in case of Commonwealth of Pennsylvania v. Joseph Leaming.

COUNSEL

Leonard Turner, with him Louis S. Cali, for appellant.

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

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones concurs in the result. Mr. Justice Cohen took no part in the decision of this case.

Author: Roberts

[ 442 Pa. Page 224]

Appellant, Joseph Leaming, was convicted of first degree murder following trial by jury and sentenced to life imprisonment on February 28, 1967. This Court subsequently reversed the judgment of sentence and remanded the case for a new trial because of the introduction at the first trial of an unconstitutionally obtained confession.*fn1 Although the judgment was reversed on November 12, 1968, there has as yet been no retrial, and appellant presently maintains that this delay prior to retrial violates his constitutional right

[ 442 Pa. Page 225]

    to a speedy trial. Under the circumstances presented, we must agree.

The pertinent chronology is as follows. When appellant appeared for a new trial on February 28, 1969, the Commonwealth applied for a nolle prosequi. Appellant opposed the application and moved for immediate trial. The trial court denied both the application for a nolle prosequi and the motion for immediate trial and ordered the case put on a deferred indictment status for a period not to exceed six months. On September 15, 1969, appellant's case was again listed for trial. The Commonwealth renewed its application for a nolle prosequi, and appellant renewed his demand for trial. The trial court granted the nolle prosequi on the same date, and the present appeal was taken from that order.

We must address ourselves initially to the question of the appealability of the order granting the nolle prosequi. The Commonwealth asserts that the order is interlocutory, noting that appellant could raise his speedy trial claim if and when the Commonwealth petitions the trial court to remove the nolle prosequi and that the necessity for our review of the speedy trial issue would disappear altogether if appellant were to win an acquittal upon retrial.

To the extent that the constitutional guarantee of speedy trial reflects a desire to minimize the degree to which pretrial delay hampers an accused's ability to defend himself, appellant would indeed have an adequate opportunity to secure relief by appealing any subsequent conviction on the ground of prejudicial delay. However, the speedy trial guarantee is also much concerned with limiting the period of "anxiety and concern accompanying public accusation." United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966), and, in this regard, quashing the instant appeal makes little sense. The logic of the Commonwealth's position

[ 442 Pa. Page 226]

    allows for the possibility that appellant will be forced to live under the shadow of a pending indictment for years, and appellate review after trial at the expiration of such a potentially long period can provide no effective remedy for the intervening anxiety and concern.*fn2 Accordingly, even if the nolle prosequi order be interlocutory, the particular nature of the speedy trial issue presents "exceptional circumstances" dictating appealability. See Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 ...


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