Richard A. Sprague, Pamela W. Higgins, Michael K. Simon, Phyllis C. Kaufman, Philadelphia, for appellant.
John A. Kenneff, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien, J., files a dissenting opinion in which Nix, J., joins. Jones, former C. J., took no part in the consideration or decision of this case.
On August 15, 1975, appellant, Richard Charles Haefner, was charged with involuntary deviate sexual intercourse*fn1 and corruption of minors.*fn2 The criminal charges arose from an alleged incident involving the appellant and a twelve-year-old juvenile.
On January 27, 1976, a jury trial began in the Court of Common Pleas of Lancaster County, and on February 3, 1976, the case went to the jury. That evening the court below, sua sponte, declared a mistrial because the jury failed to reach a verdict.
Appellant's retrial was continued until September 20, 1976, to allow for dispositon of all pretrial motions. On March 5, 1976, appellant filed an "application to quash indictment." The application to quash alleged, inter alia :
"3. The Defendant was previously tried on two of these charges and trial resulted in the court dismissing [sic] a mistrial and dismissing the jury panel, said declaration of a mistrial was not with the consent of the Defendant and therefore a second trial is barred in that the mistrial was not caused by the Defendant nor was it entered with his consent."
On June 21, 1976, the court below denied appellant's motion to quash the indictments. On June 29, 1976, appellant appealed the denial of this motion to the Superior Court and the Commonwealth filed a motion to quash the appeal. The basis of the Commonwealth's motion was that such an order was interlocutory. On July 22, 1976, the Superior Court granted the Commonwealth's motion
to quash. Appellant thereafter filed a petition for allowance of appeal, which this court granted on September 17, 1976.
Appellant argues that the Superior Court erred in quashing his appeal from the denial of a pretrial motion alleging a claim of ...