Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, Nos. 471 to 478, inclusive, in case of Commonwealth of Pennsylvania v. David Silver.
Steven H. Goldblatt, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
A. Charles Peruto, and Peruto, Ryan & Vitullo, for appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 238 Pa. Super. Page 223]
This is an appeal by the Commonwealth from a lower court order dismissing indictments against the appellee for failure to comply with the prompt trial rule.*fn1
The facts reveal that on June 29, 1973, the special investigating grand jury of Philadelphia County*fn2 formally submitted a presentment to its supervising court. This "fifth presentment" recommended the indictment of the appellee on charges of misfeasance, malfeasance and perjury. The court accepted the presentment which it forwarded to the attorney for the Commonwealth with instructions to prepare appropriate bills of indictment. The bills were then submitted to an indicting grand jury which returned indictments on July 11, 1973.
The appellee was arrested one week later on July 17, 1973. For reasons not pertinent hereto, the district attorney requested the appointment of an out of county judge to try the case. The case was eventually listed for trial on March 25, 1974. On that date, 257 days having elapsed since the date of indictment, the case was continued at the request of defense counsel who was engaged in trial in another county. The case was marked to be listed at the earliest opportunity by the court administrator. On April 10, 1974, defense counsel finished his trial and promptly communicated his availability to the court administrator.
In May or June of 1974 the initial trial judge was permitted to withdraw from the case and in July of 1974 the Chief Justice appointed Judge Kreider to
[ 238 Pa. Super. Page 224]
hear the case. On August 26, 1974, Judge Kreider withdrew because of ill health. On November 15, 1974, the appellee filed a motion for dismissal under Pa.R.Crim.P. 1100. As of that date an additional 219 days had elapsed since April 10, 1974, when counsel had indicated his availability for trial. Since the date of the indictment, a total*fn3 of some 491 days had elapsed. On December 12, 1974, Judge Guarino, following an evidentiary hearing, dismissed the indictments with prejudice and the Commonwealth appealed.*fn4
The sole issue presented in this appeal is whether, in extraordinary criminal proceedings, the time period by which the courts must measure any abridgment of the constitutional right to speedy trial or the right to prompt trial under Rule 1100, commences when an investigating grand jury issues its presentment in open court or whether it commences at such later time as the presentment is submitted to an indicting grand jury. The ...