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COMMONWEALTH v. BELL (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
BELL, APPELLANT



Appeal from order of the Court of Common Pleas, Trial Division, of Philadelphia, June T., 1961, No. 1552, in case of Commonwealth of Pennsylvania v. Darryl A. Bell.

COUNSEL

Charles Lowenthal, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 442 Pa. Page 567]

We are here called upon to determine whether Section 2 of the act providing for the mandatory disposition of detainers lodged against persons imprisoned in any state, county or municipal penal or correctional institution,*fn1 commonly known as the "180 day rule", is

[ 442 Pa. Page 568]

    self-executing. Section 2*fn2 provides that if the "action" is not brought to trial within the 180 days required by Section 1,*fn3 the indictment shall be dismissed. We hold that Section 2 operates automatically. The statutory language clearly mandates that after the expiration of the 180-day period, ". . . no court of this state shall any longer have jurisdiction [over the case] . . ., nor shall the untried indictment be of any further force or effect . . . ."*fn4

The pertinent factual background, which is complex, is as follows. In June, 1961, appellant Darryl A. Bell was indicted separately for the murders of Herman Rosenberg and Max Kanal. He pleaded guilty to murder generally on both bills of indictment, and after a hearing before a three-judge court, the degree of guilt was determined to be first degree murder in both cases. The sentence imposed was death. Subsequently, new

[ 442 Pa. Page 569]

    trials were granted after a motion was filed challenging the propriety of pleading guilty to two separate murders before the same panel of judges. Appellant was retried on the Rosenberg indictment, and a jury adjudged him guilty of murder in the first degree and fixed the penalty at death.

Appellant is presently incarcerated under sentence of death on the Rosenberg murder conviction.*fn5 On April 26, 1968, appellant filed a pro se "Motion for Disposition of Indictment". After setting forth the history of his case, appellant quoted from Section 1 of the statute, and prayed for a speedy disposition of the indictment for the Kanal murder under the 180-day rule. A copy of this motion was received by the Philadelphia District Attorney's office on April 29, 1968.

The matter came on for a hearing on May 22, 1968. Appellant's court appointed counsel was present, and the hearing court (Nix, J.) ruled that any proceeding at that time would be premature, for the 180 days had not yet terminated. The court's order directed the motion was not to be listed until the expiration of that period. Nevertheless, for some unexplained reason, the matter was listed again on August 13, ...


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