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COMMONWEALTH v. BENNETT (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
BENNETT, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1973, No. 1506, in case of Commonwealth of Pennsylvania v. Garfield Bennett.

COUNSEL

Alfred P. Filippone, for appellant.

Carolyn Engel Temin, Assistant District Attorney, with her 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, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Spaeth, J. Concurring Opinion by Jacobs, J. Watkins, P.j., joins in this concurring opinion.

Author: Spaeth

[ 236 Pa. Super. Page 511]

Appellant, Garfield Bennett, was arrested on November 27, 1973, and charged by criminal complaint with robbery, burglary, kidnapping threats, aggravated assault and battery, and various other crimes. Indictments were returned on December 12, 1973, and the case was listed for trial on January 2, 1974. The case was not tried then or on many other listed dates due to numerous continuances and delays. On August 23, 1974, two hundred and seventy-three days after the date of the complaint, appellant filed a petition under Rule 1100 of the Pennsylvania Rules of Criminal Procedure seeking dismissal of the charges against him. After a hearing, the lower court denied the petition. This appeal followed. Appellant also filed a petition for special allowance of a supersedeas, which was granted on October 9, 1974, pending disposition of the appeal.

[ 236 Pa. Super. Page 512]

The Commonwealth did not object to the supersedeas, nor does it object to the jurisdiction of this court on appeal. We believe, however, that the issue of appealability is important and therefore raise it sua sponte, as is our right. Davidyan v. Davidyan, 229 Pa. Superior Ct. 495, 502, 327 A.2d 139, 142 (1974).

"The Superior Court derives all its jurisdiction and powers from statute. See Duquesne City v. Fincke, 269 Pa. 112, 115, 112 A. 130; Commonwealth v. Long, 276 Pa. 154, 156, 120 A. 125; Commonwealth ex rel. v. Speer, 267 Pa. 129, 134, 110 A. 268; cf. Pittsburgh v. Pierce, 69 Pa. Superior Ct. 520, 524. Hence, no right of appellate review exists in that court in any instance except it be expressly authorized by statute." Commonwealth v. Guardiani, 226 Pa. Superior Ct. 435, 437, 310 A.2d 422, 423-24 (1973), quoting from Commonwealth v. Harris, 409 Pa. 163, 171 185 A.2d 586, 590 (1962).

The statute authorizing appeals to the Superior Court is the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. ยง 211.101 et seq. This Act authorizes the court to hear appeals from final orders. Section 302 of the Act provides: "The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any section of this act within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court." The first question then is whether the order denying appellant's petition is a final order.

Ordinarily all pre-trial orders are considered interlocutory and not appealable. Commonwealth v. Rucco, 229 Pa. Superior Ct. 247, 324 A.2d 388 (1974). See, e.g., Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968); Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968); Commonwealth v. Bruno, 424 Pa. 96, 225

[ 236 Pa. Super. Page 513]

A.2d 241 (1967). Accordingly, our courts have held that an order denying a motion to quash an indictment is interlocutory and not appealable. Commonwealth v. Farris, 443 Pa. 251, 278 A.2d 906 (1971); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth v. O'Brien, 389 Pa. 109, 132 A.2d 265 (1957); Commonwealth v. Smith, 212 Pa. Superior Ct. 403, 244 A.2d 787 (1968); Commonwealth v. Fudeman, 186 Pa. Superior Ct. 547, 142 A.2d 473 (1958), aff'd, 396 Pa. 236, 152 A.2d 428 (1959), cert. denied, 361 U.S. 902 (1958). There are, however, two exceptions to this rule. One, immediate appeals are allowed when the indictment is defective on its face. Commonwealth v. O'Brien, supra; Commonwealth v. Smith, supra. Two, the Supreme Court has allowed appeals when exceptional circumstances exist that ...


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