Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1973, No. 7529A, in case of Commonwealth of Pennsylvania v. Vincent Albanesi.
Louis R. Paulick, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
Morton B. DeBroff, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Price, J. Van der Voort, J., joins in this dissenting opinion.
[ 234 Pa. Super. Page 112]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas, Criminal Division, of Allegheny County, dismissing a four count bill of indictment for violation of The Controlled Substance, Drug, Device and Cosmetic Act because of the failure of the Commonwealth to provide a bill of particulars to the defendant-appellee within the time limit provided in Rule 221 of the Pennsylvania Rules of Criminal Procedure.
The appellee was scheduled for trial on February 7, 1974. On January 25, 1974, he filed and served on the Commonwealth a Request for a Bill of Particulars. On January 31, 1974, the appellee moved to dismiss the indictments due to the Commonwealth's failure to furnish the Bill of Particulars. After a hearing the court granted the appellee's motion and the indictment was dismissed. The Commonwealth then petitioned the court to vacate its dismissal of the indictment which it refused to do after a hearing. The Commonwealth's petition was denied on February 6, 1974. The Commonwealth then appealed
[ 234 Pa. Super. Page 113]
from the order of February 6, 1974 denying the petition to vacate the dismissal of the indictments.
The appellee claims that since the Commonwealth appealed from the Order of February 6, 1974 rather than the original order of January 31, 1974, we should refrain from considering the appeal since an appeal from the January 31, 1974 Order was not taken within thirty (30) days. While the appellee is correct in his assertion that the Commonwealth should have appealed the January 31, 1974 Order we will allow the appeal since the appeal was taken within thirty (30) days of the original order. We might also point out that had the appeal not been taken within thirty (30) days of the original order we would be required to hold that it was not timely filed.
Rule 221 of the Pennsylvania Rules of Criminal Procedure provides in part that:
"(a) A bill of particulars should be furnished by the attorney for the Commonwealth within two (2) days after service upon him of a copy of a written request by a defendant . . .
"(b) Upon failure of the attorney for the Commonwealth to furnish a bill of particulars after service of a request upon him, the defendant may make written application for relief to the ...