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COMMONWEALTH PENNSYLVANIA v. EVERETT BARBER ET AL. (04/03/75)

decided: April 3, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
EVERETT BARBER ET AL., APPELLANTS



COUNSEL

A. Richard Gerber, Gerber, Davenport & Wilenzik, Norristown, for appellants.

Milton O. Moss, Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Jones, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., took no part in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Manderino, J., joins.

Author: Per Curiam

[ 461 Pa. Page 739]

OPINION OF THE COURT

Appeal quashed. See Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974).

ROBERTS, Justice (dissenting).

The majority refuses to decide the merits of the appeal because, as its citation of Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974), indicates, it concludes that the order appealed from is interlocutory and, therefore, not properly appealable. In my view, the order is sufficiently final to form the basis of an appeal. Therefore, I dissent from the order quashing the appeal.

[ 461 Pa. Page 740]

On July 22, 1973, appellants were arrested and charged with the killing of Michael Trunk. Bills of indictment were returned by the grand jury on October 15, 1973. On May 13, and 14, 1974, appellants moved to quash the indictments and dismiss the charges, asserting that their rights to a prompt trial as specified in Pa.R.Crim.P. 1100(a)(1), 19 P.S. Appendix,*fn1 had been violated. The trial court dismissed the motions and denied relief on May 29, 1974. This appeal followed.

This Court's appellate jurisdiction in cases of felonious homicide depends on the existence of a "final order." Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202, 17 P.S. § 211.202 (Supp.1974); see also 17 P.S. §§ 211.102(a)(6), .203, .204(a). In general, only the final judgment of sentence in a criminal case is sufficiently final to support appellate jurisdiction. See Commonwealth v. Bunter, 445 Pa. 413, 418, 282 A.2d 705, 707 (1971) (plurality opinion); Commonwealth v. Swanson, 424 Pa. 192, 193, 225 A.2d 231, 232 (1967); Commonwealth v. Haushalter, 423 Pa. 351, 352, 223 A.2d 726, 727 (1963); Commonwealth v. Pollick, 420 Pa. 61, 63, 215 A.2d 904, 905 (1966); but cf. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). A trial court's refusal to quash an indictment is, in most instances, interlocutory and thus not appealable. See Commonwealth v. Bunter, supra; Commonwealth v. O'Brien, 389 Pa. 109, 110-11, 132 A.2d 265 (1957).

The order appealed from in this case is not a final judgment but a refusal to quash indictments. That fact, however, does not end the inquiry. Appealability is determined according to the statutory standard of finality, and ...


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