Penn B. Glazier, Lancaster, for appellant.
D. Richard Eckman, Dist. Atty., Ronald L. Buckwalter, Michael H. Ranck, Mary Anne Motter, Asst. Dist. Attys., Lancaster, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.
On March 30, 1972, Cornell Galloway was convicted by a jury in Lancaster County of Murder in the second degree. Motions for a new trial*fn1 and in arrest of judgment were timely filed, but before the date fixed for oral argument of these motions, Galloway escaped from the Lancaster County Prison and became a fugitive from justice. On November 2, 1972, acting on a petition filed by the district attorney, the trial court entered an order dismissing Galloway's post-trial motions with prejudice on the basis of Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).
Galloway was later apprehended and returned to the custody of the Lancaster County authorities. On January 5, 1973, he was sentenced to imprisonment for a term of ten to twenty years on the murder conviction. On January 17, 1973, counsel for Galloway filed "Additional and Supplemental Motions for a New Trial, Nunc
Pro Tunc".*fn2 On the same date, the trial court entered the following order:
"And now, this 17th day of January, A.D. 1973, the within Supplemental Motions are allowed to be filed; and it appearing the defendant was a fugitive from justice at the time of the filing of the original motions, the Supplemental Motions are hereby dismissed."*fn3
An appeal was filed in this Court on January 23, 1973, and it was listed for hearing or oral argument on May 4th. On that date, we were informed Galloway had again escaped from custody and was once more a fugitive from justice. The district attorney filed a petition asking that the appeal be dismissed with prejudice. However, we took no action on the petition and entered an order continuing the hearing until Galloway returned to custody. On August 1, 1974, we were informed Galloway had been returned to custody so we fixed November 19th as the date for hearing the appeal. On that date, we heard oral argument on the merits, as well as on the motion to dismiss, and directed both sides to file supplemental briefs on the issue of whether the appeal should be dismissed.
The Commonwealth presses its motion to dismiss the appeal, citing Molinaro v. New Jersey, supra, for its position. However, Molinaro is inapposite. In that case, the Supreme Court of the United States dismissed an appeal before that Court on writ of error from the New Jersey state courts, because the appellant therein, who had been free on bail had failed to surrender himself to the state ...