Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellant.
Needleman, Needleman, Tabb & Eisman, Gerald A. Stein, Philadelphia, for appellee.
Stephen J. McEwen, Jr., Upper Darby, for Pa. District Attorneys' Assn.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring and dissenting opinion. Manderino, J., filed a concurring opinion.
This appeal by the Commonwealth arises from the order of Superior Court which discharged the appellee, Andrew Millhouse. The basis of the discharge order was a violation of Pennsylvania Rule of Criminal Procedure 1100 -- prompt trial. The facts surrounding this appeal are as follows.
On January 3, 1974, appellee, Andrew Millhouse, was indicted on two counts of malfeasance, misfeasance and nonfeasance in connection with his duties as a cigarette tax agent for the Commonwealth. The appellee was also indicted for four counts of perjury, four counts of false swearing, two counts of miscellaneous fraud, and one count of burglary, larceny, receiving stolen goods and conspiracy.
On January 15, 1974, a preliminary arraignment and bail hearing were scheduled but both were continued until February 6, 1974.
On February 6, 1974, the appellee, unrepresented by counsel, was arraigned. On March 12, 20, April 15, 18, 25 and May 1, 1974, the case was listed for preliminary proceedings. On March 12, 1974, a pretrial proceeding was deferred until March 20, 1974, when appellee again was unrepresented by counsel. On April 15, 18, 25 and May 1, 1974 scheduled preliminary proceedings could not be held because appellee had not retained counsel. On May 3, 1974, the court below admonished the appellee that this was the third time he had appeared before the court without defense counsel.*fn1 The appellee stated that difficulty in agreeing on a fee was the reason that he remained unrepresented, but he assured the court that he had spoken with several attorneys and that he was confident he could arrange to retain counsel. The court then postponed until May 13 any further action on the appellee's case until he could retain counsel.*fn2 On May 13, 1974, the appellee failed to appear before the court below and Judge Blake issued a bench warrant for his arrest. On May 28, 1974, Abraham Needleman, Esquire, entered his appearance on behalf of the appellee, at which time Judge Blake withdrew the bench warrant.
On June 3, 1974, defense counsel requested the court below that he be allowed to join in the discovery motion of one of the appellee's co-defendants, Melvin Shelton. On March 12, 1974, Judge Blake granted a discovery motion by Shelton pertaining to materials of the Special Investigating Grand Jury. Subsequently it was discovered that on January 5, 1974, Judge Harry Takiff, the presiding
judge of the Grand Jury, had impounded all of the records of that Grand Jury. On April 29, 1974, Judge Blake ordered all parties to apply to Judge Takiff for clarification of the conflicting orders. On July 3, 1974, Judge Takiff resolved the conflict by allowing the co-defendants, Millhouse and Shelton, access to their own testimony before the grand jury but denying further discovery.
The case was assigned to Judge Herbert Cain for trial in June of 1974. On October 1, 1974, the judge recused himself and on October 4, 1974, the case was reassigned to Judge William Porter and a trial date of December 2, 1974, was set.
On November 1, 1974, appellee's counsel filed a motion to dismiss the indictments because of a violation of Pa.R.Crim.P. 203(c), failure to give adequate notice of the indictment, and also to discharge appellee because of a violation of ...