W. D. Balitas, Anthony J. Urban, Public Defenders, Pottsville, for appellant.
Richard B. Russell, Dist. Atty., Adam D. Bavolack, First Asst. Dist. Atty., Pottsville, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joins in this opinion and files a concurring opinion. Eagen and Pomeroy, JJ., concur in the result. Nix, J., filed a dissenting opinion.
In this appeal,*fn1 we are presented with three issues arising from the grant of a nolle prosequi: (1) is Pa.R.Crim.P. 314(a),*fn2 which provides that a trial court
may, upon request of the Commonwealth, grant a nolle prosequi "notwithstanding the objection of any person," valid under the Federal Constitution; (2) was appellant denied due process of law under the Federal Constitution by the trial court's grant of a nolle prosequi; and (3) was the trial court's grant of a nolle prosequi an abuse of discretion.
On February 1, 1972, after several hours of drinking with undercover agents of the Pennsylvania State Police, Joseph Francis Bowers confided that he and two other men had been involved in the burglary-murder of John L. Miller in June of 1969. A week later the agents again sought out Bowers, who once again admitted his participation in the crime. A criminal complaint was filed against Bowers on March 8, 1972, and he was indicted on July 13, 1972.
While in prison, Bowers gave police a formal statement implicating himself, one Kemmerling, one Schneck and appellant in Miller's murder. Criminal complaints against the three were filed on June 27, 1972, and they were indicted October 4, 1972.
Counsel was appointed to defend appellant in July 1972. This counsel, however, withdrew from the case on October 2, 1972, two days before appellant was indicted, and was replaced by the public defender. The case was called for trial on November 15, 1972, at which time the defender, over appellant's objection in open court, moved for a continuance because he was not ready to go to trial. The continuance was granted, with trial scheduled for January 1973.
Schneck's case proceeded more quickly than did appellant's. A jury was sworn in Schneck's case on January 8, 1973. Bowers, the only witness able to link both Schneck and appellant to the crimes charged was called but refused to testify, asserting his right to remain silent. The Commonwealth, caught by surprise, was unable
to prove its case and was unable to obtain either a continuance or a nolle prosequi. Schneck was acquitted.
At this time a jury was being selected to hear appellant's case but had not yet been sworn. When Bowers refused to testify in Schneck's trial on January 8th, the Commonwealth asked for and was granted a short continuance in appellant's trial to determine whether Bowers would again refuse to testify if called as a witness in appellant's case. During the continuance Bowers, his attorney and attorneys ...