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COMMONWEALTH v. BUNTER (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
BUNTER, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1969, Nos. 732, 733 and 734, in case of Commonwealth of Pennsylvania v. Lawrence Bunter.

COUNSEL

Neil Jokelson, with him Goodis, Greenfield, Narin & Mann, for appellant.

J. Bruce McKissock, 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 and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 445 Pa. Page 416]

This is an appeal from the order of the Court of Common Pleas of Philadelphia, Criminal Division, dismissing appellant's petition to quash the outstanding murder indictment against him. We vacate the order refusing to quash the instant indictment, and direct the trial court to conduct a hearing on the alleged denial of speedy trial.

The relevant facts may be summarized as follows: On February 13, 1967, the frozen, partially decomposed body of one Bernice Warder was found in the trunk of an abandoned automobile parked on a street in Philadelphia. Initial police inquiry disclosed that the victim was last seen alive on November 26, 1966, in the company of appellant, Lawrence Bunter. Later investigation led authorities to believe that Bunter was the prime suspect in the killing. Subsequently, appellant was found to be incarcerated in a federal prison in Virginia, having been convicted of crimes committed in the District of Columbia. On October 25, 1967, the Philadelphia Police Department lodged an arrest detainer for Bunter charging him with murder. At this

[ 445 Pa. Page 417]

    point in time appellant had approximately eighteen months left to serve on his federal sentence.

Over the course of the next year Bunter filed a series of pro se petitions with various titles in both United States District Courts for the Eastern Districts of Pennsylvania and Virginia, as well as in the Court of Quarter Sessions of Philadelphia County. At different times appellant charged that he was being denied a speedy trial, sought a writ of habeas corpus, prayed that the detainer be dismissed and asked for a change of venue. Some of these motions were ignored by the courts.*fn1 One was returned because additional copies were required,*fn2 and one was dismissed on the merits with instruction to appellant to seek the relief prayed for in the appropriate state courts of Pennsylvania.*fn3

On April 17, 1969, appellant was indicted by the Philadelphia grand jury as a fugitive from justice on the charge of murder. After extradition proceedings, which were contested by appellant, he was returned to this state in November of 1969. Bunter's appointed counsel sought to have the indictment quashed on the grounds that: the bills as presented to the grand jury were defective; there had been neither preliminary arraignment

[ 445 Pa. Page 418]

    nor hearing prior to indictment; trial was not held within 120 days as provided by the Interstate Agreement on Detainers, Act of September 8, 1959, P. L. 829, 19 P.S. ยง 1431 et seq., and because Bunter's right to a speedy trial had been abridged by the Commonwealth. On April 15, 1970, the motion to quash was heard and denied by the lower court and bail was set in the amount of $2000.

At the threshold we must meet the question raised by the Commonwealth's motion to quash this appeal on the grounds that it constitutes an attempt to appeal an interlocutory order.

In criminal cases, the general rule is that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed. Commonwealth v. Haushalter, 423 Pa. 351, 223 A.2d 726 (1966); Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293 (1966); Commonwealth v. Novak, 384 Pa. 237, 120 A.2d 543 (1956). Refusal by a court to grant a motion to quash an indictment is such an interlocutory order. Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954). However, as the Kilgallen case made clear, the rule prohibiting interlocutory appeal is not one of unyielding inflexibility. When there are special and exceptional circumstances, the defendant may ...


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