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COMMONWEALTH v. DE ROSE (06/14/73)

decided: June 14, 1973.

COMMONWEALTH, APPELLANT,
v.
DE ROSE



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, Nos. 907 and 908, in case of Commonwealth of Pennsylvania v. Samuel De Rose.

COUNSEL

Paul J. Drucker, Assistant District Attorney, with him Arthur R. Makadon, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Burton A. Rose, with him A. Charles Peruto, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Watkins and Cercone, JJ., dissent.

Author: Hoffman

[ 225 Pa. Super. Page 9]

The Commonwealth has appealed from the dismissal by the lower court of indictments charging the appellee with bribery and corrupt solicitation.

The charges arose out of a conversation which allegedly took place between the appellee and Robert Frederick, a former police captain, at the Inner Circle Bar in Philadelphia sometime in January or February of 1970.*fn1 Appellee was accused of offering Frederick $150.00 a month to "do nothing".*fn2 No written report of the incident was ever made, but Frederick reported the incident to his superior, Inspector Wong, who told him to take no action.

Frederick was called to testify before a special grand jury on November 22, 1971. He related the incident to the grand jury and appellee was arrested eight days later, approximately twenty-two months after the offense. Indictments were returned on January 24, 1972, alleging that the offense occurred on or about February 1, 1970, a Sunday. The district attorney's bill of particulars stated that the offense took place on February 2, 1970.

[ 225 Pa. Super. Page 10]

At the preliminary hearing, Frederick identified appellee as the person with whom he had the conversation. He was unable to remember the exact words used or the specific date on which the offense took place. Rather, he was only able to state that it occurred in January or February. He testified that three or more people who were not within hearing distance were present when the conversation took place.

In July of 1972, a hearing was held on appellee's motion to dismiss the indictments because of a twenty-two month delay between the incident and appellee's arrest.*fn3 Appellee testified that he was unable to recall ever having the conversation with Frederick. Nor was he able to remember any of his specific activities during January or February of 1970.

Following the hearing, the lower court, per Della Porta, J., granted appellee's motion to dismiss the indictments. The court found no justification for the delay. It also found that appellee's claimed loss of memory was plausible, and that the delay significantly impaired his ability to defend against the charges. The court reasoned that the difficulty presented to the appellee in answering to an incident occurring twenty-two months before arrest required dismissal of the indictments. We affirm the lower court's order.

The Supreme Court of the United States has recognized that a significant delay between an alleged criminal incident and the first notification to an accused that he will be required to answer for the incident may ...


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