F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellant.
Herman Blumenthal, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result.
On March 25, 1974, appellee, James Whitaker, along with two others, was arrested and charged with four counts of murder and one count of criminal conspiracy. Indictments followed on all charges. On December 17, 1974, two hundred sixty-eight days after appellee's arrest, the prosecution moved, pursuant to Rule 314, Pa.R.Crim.P., for leave to enter a nolle prosequi in the case against appellee on the grounds that it had no admissible evidence with which to prosecute the case. The prosecution's lack of evidence resulted from the grant of a motion to suppress certain incriminating statements made by appellee to police, and because a co-defendant, who was expected to be the main prosecution witness against appellee, had refused to testify. Over appellee's objection,
the prosecution's motion for a nolle prosequi was granted.
On February 20, 1975, the prosecution filed a motion to vacate the nolle prosequi. Appellee answered on March 6, 1975, joining in the prosecution's motion to vacate the nolle prosequi, and also filing a motion to dismiss all charges, alleging that a violation of Rule 1100 of the Pa.R.Crim.P. had occurred. A hearing was held on May 29, 1975, following which the trial court issued an opinion and order vacating the nolle prosequi, and granting appellee's motion to dismiss all charges with prejudice. From this order the prosecution now appeals. The appeal on the bill of indictment charging appellee with murder was taken directly to this Court; the appeal on the bill of indictment charging appellee with criminal conspiracy was taken to the Superior Court and subsequently transferred here.
Rule 1100 provides that for written complaints filed after June 30, 1973, but before July 1, 1974, trial must commence within two hundred seventy days of the complaint unless certain exceptions not relevant here are complied with. Trials based on complaints filed after June 30, 1974, must begin within one-hundred eighty days of the filing of the complaint, again with a few exceptions not presently pertinent. The trial court granted appellee's motion to dismiss with prejudice because the prosecution had failed to bring appellee to trial within the two hundred seventy days required by Rule 1100.
The prosecution now asks us to hold that the entry of a nolle prosequi on motion of the district attorney and with approval of the court tolls the running of the two hundred seventy day time period specified by Rule 1100 so long as no violation of a defendant's right to a speedy trial, as that right is defined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) has occurred, and so long as relevant statutes of limitations have not expired. This we decline to do.
Several statements from Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), are particularly ...