No. 235 April Term, 1978, No. 236 April Term, 1978, Appeals from the Orders dated September 12, 1977, granting Appellees' Motions to Dismiss in the Court of Common Pleas, Criminal Division, of Allegheny County, Pennsylvania, at Nos. CC7603201 and CC7603199.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Byrd R. Brown, Pittsburgh, for appellee Fred Orlosky.
John H. Corbett, Jr., Assistant Public Defender, Pittsburgh, for appellee Thaddeus J. Dedo.
Cercone, President Judge, and Wieand and Hoffman, JJ. Cercone, President Judge, concurs in the result. Hoffman, J., files a concurring statement.
[ 264 Pa. Super. Page 600]
This is a Commonwealth appeal from an order of the Court of Common Pleas of Allegheny County which dismissed conspiracy charges against Fred Orlosky and Thaddeus J. Dedo because of a failure to commence trial within the time requirements of Pa.R.Crim.P. 1100. We affirm.
The procedural history of the cases is important. Complaints were filed on April 19, 1976, charging Orlosky and Dedo, appellees, with conspiracy to commit theft by deception. According to the mandate of Pa.R.Crim.P. 1100(a)(2), it was necessary that trial on such charges commence on or before October 16, 1976. On October 3, 1976, the Commonwealth filed applications to extend the time for commencement of trial. These applications were heard before the Honorable Donald E. Ziegler on October 12, 1976. The court
[ 264 Pa. Super. Page 601]
granted the requests of the Commonwealth by two separate orders, unaccompanied by findings of fact, which directed that the named defendants "be tried not later than 120 days after the final order of the appellate court at No. 22 April 1977 (Superior Court)."
The appeal referred to in the court's order involved a separate but related matter. The principal Commonwealth witness against Orlosky and Dedo was to be Clarence Miller, who had also implicated one Charles Goldblum in the alleged conspiracy. Goldblum had attempted to bring a private prosecution against Miller for perjury. The District Attorney of Allegheny County had declined to approve Goldblum's requested prosecution, and the Court of Common Pleas had affirmed the District Attorney's decision. Goldblum thereupon had appealed to the Superior Court.
The Commonwealth argued before Judge Ziegler on October 12, 1976, that it should not be required to commence trial against Orlosky and Dedo so long as there remained the possibility of a perjury conviction against its principal witness. The trial court concluded that the requested delay would serve the interests of justice, as well as those of the parties, and entered the orders previously recited.*fn1
Goldblum's appeal to the Superior Court was decided on January 17, 1977 by a per curiam order which affirmed the trial court's order denying the requested private prosecution. Allocatur was denied by the Supreme Court on May 11, 1977. ...