Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, Nos. 96 and 97, in case of Commonwealth of Pennsylvania v. Kenneth Lord.
Michael F. Henry, David Richman, Bonnie B. Leadbetter, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Richard Lunenfeld, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 230 Pa. Super. Page 98]
This is an appeal by the Commonwealth from an order dismissing the prosecution of the appellee on the basis that the nolle pros. entered in this case, having once been entered, cannot be removed.
Appellee, Kenneth Lord, was arrested on December 3, 1969, as the result of a fire of the Simkins Box Company in Philadelphia on November 28, 1969, and was indicted on January 1, 1970, on two counts: arson and firing personal property. The lower court, on April 15, 1970, revoked appellee's bail and committed him for a psychiatric examination to determine competency to stand trial. As a result of the psychiatric examination on April 17, 1970, appellee was found competent to stand trial. However, after five continuances, the Commonwealth was still unprepared to go to trial, and on June 1, 1970, moved that all charges be nolle prossed. At the same time, the Commonwealth also petitioned the Court to commit the appellee to the Philadelphia State Hospital at Byberry pursuant to the provisions providing for civil court commitment under the Mental Health Act, Act of October 20, 1966, Special Sess. No. 3, P. L. 96, art. IV, § 406 (50 P.S. § 4406). The appellee and his father consented to the commitment order.
[ 230 Pa. Super. Page 99]
Appellee was arrested pursuant to a bench warrant issued on November 5, 1971, based on the violation of the order of civil commitment following appellee's unauthorized departure from the Philadelphia State Hospital on August 7, 1970. On March 9, 1972, the lower court removed the nolle pros. over defense counsel's objections and appellee was tried on April 17, 1972. Appellee waived a jury trial and was found guilty by the trial judge of arson and firing of personal property.
Subsequently, appellee filed timely motions for a new trial and in arrest of judgment contending that he was denied due process of law and effective assistance of counsel because his attorney acquiesced in and offered no challenge to the Commonwealth's lifting of the original nolle pros. entered on June 1, 1970. The motions were argued before the court en banc, which by opinion, dated February 8, 1973, ruled that "[b]y entering a nolle prosse and permitting the defendant to commit himself under Section 406 [of the Mental Health Act,] the Commonwealth effectively relinquished its right to seek further prosecution," and ordered a new trial for appellee. The Commonwealth filed a petition for reconsideration of the order on February 23, 1973, which was denied on March 16, 1973. The Commonwealth did not appeal the denial of this petition or the original order of the court en banc.
On August 9, 1973, the lower court held a hearing and subsequently ordered the dismissal of the indictments and the discharge of the appellee. The Commonwealth appealed from this order on August 30, 1973.
In its appeal, the Commonwealth contends that the court en banc erred in ordering a new trial, and, alternatively, that the lower court erred in dismissing the ...