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decided: May 8, 1979.


Nos. 94, 96 January Term, 1977, No. 95 January Term, 1977, Consolidated Appeals by Permission from Orders of the Court of Common Pleas of Delaware County, Criminal Division, as of No. 732 May 1975 (Brightwell) per William R. Toal, J., and No. 733 May 1975 (Faust) per Clement J. McGovern J.


Levis, Connors & Swanick, Robert J. Levis, Media, for Bobby Brightwell.

David W. McNulty, Springfield, for Jesse Faust.

D. Michael Emuryan, Asst. Dist. Atty., for the Com.

Mr. Justice Nix filed an Opinion in Support of Affirmance which was joined by Mr. Justice Larsen. Mr. Justices Roberts and Manderino filed separate opinions in Support of Reversal. Chief Justice Eagen and Mr. Justice O'Brien did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 486 Pa. Page 402]


[ 486 Pa. Page 403]

The Court being equally divided, the orders entered by the Court of Common Pleas of Delaware County, Criminal Division, are affirmed.


NIX, Justice.

This is an interlocutory appeal from orders of the trial court denying appellants' motions to dismiss the pending charges under Pa.R.Crim.P. 1100. Appellants Faust and Brightwell were charged with various offenses including the crimes of murder, voluntary and involuntary manslaughter, and robbery arising out of a robbery of a gas station in the City of Chester in July of 1975. As a result of gunshot wounds sustained during the incident, Stephen Snyder, an attendant at the gas station, died. The preliminary hearing was held on February 14, 1975, and Brightwell was scheduled for trial to commence on June 16, 1975, and Faust's trial date was set for June 30, 1975. In June of 1974, a petition, filed by the Commonwealth for an extension under Rule 1100(c), was granted and a 90 day extension was given. The trial for both appellants was set for September 22, 1975. The 90 day extension period would have expired October 21, 1975.

The Commonwealth filed a second petition for extension in September of 1975, which was also granted and an additional 180 day extension was given. This second period of extension would have expired on March 21, 1976. A new trial date was set for January 26, 1976. On January 26, 1976, the Commonwealth advised the court*fn1 that it would be unable to proceed with the prosecution in these cases because

[ 486 Pa. Page 404]

    of the refusal of the Commonwealth's principal witness to cooperate, and requested and was granted, over appellants' objections, a nolle prosequi. On April 26, 1976, the Commonwealth made application for the removal of the nolle prosequi. After a hearing and argument, the application was granted on May 20, 1976 and the charges were reinstituted. On June 7, 1976, appellants petitioned for the dismissal of the charges asserting that Rule 1100 had not been complied with. Judges McGovern and Toal, sitting en banc, heard argument and entered separate orders denying the petitions in their respectively assigned cases. Both judges certified pursuant to Section 501(b) of the Appellate Court Jurisdiction, Act of 1970,*fn2 that the orders involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the matter. See 42 Pa.C.S. ยง 702(b). The Court allowed these appeals, and we would now affirm the orders entered below.

The prosecution's cases against Brightwell and Faust depended upon the testimony of an alleged accomplice in the crime, Donald Hunt. Hunt was convicted of murder of the second degree, robbery and other lesser charges for his participation and had agreed to testify as to the involvement of Brightwell and Faust. He did in fact testify against appellants at the preliminary hearing in these matters. At the hearing on the request to remove the nolle prosequi, the Commonwealth produced testimony to establish that Bright-well and Faust had intimidated and threatened Hunt, promising harm to him and his family if he continued to cooperate with the prosecution in the case against appellants.*fn3 The testimony also indicated that appellants had not only the ability, but also the disposition to accomplish these threats and that the witness's withdrawal of his cooperation

[ 486 Pa. Page 405]

    was as a direct result of the fear engendered by these threats.*fn4

Appellants first argue that the ruling of Judge Kelly removing the nolle prosequi cannot be construed as a finding that they intimidated Hunt because Judge Kelly did not state the basis for his decision to grant the Commonwealth's motion.*fn5 Since the only reason assigned for the request to remove the nolle prosequi was appellants alleged intimidation of Hunt, Judges McGovern and Toal properly concluded that Judge Kelly's grant of the motion reflected his acceptance of the Commonwealth's evidence establishing the intimidation.

We are thus faced with the question as to whether a delay resulting from the defense's intimidation of a principal Commonwealth witness is excludable from the computation of the 180 day period in which trial was to commence. The court had granted two extensions under Rule 1100 whereby the period was finally determined to expire on March 21, 1976. Since the propriety of these extensions are not before us, we must accept that date as the time within which trial was required to be commenced. The testimony also established that the effects of the intimidation first became manifest during a suppression hearing held in August, 1975. See n. 4, supra. The effect of the intimidation caused by appellants continued until March of 1976, n. 4, supra. Thus, the period of delay chargeable to appellants' acts of intimidation extended from August, 1975 through March, 1976. If this period is deemed not to be chargeable to the Commonwealth, the court's decision denying the motions to dismiss was clearly correct.

[ 486 Pa. Page 406]

The appellants' argument is implicitly structured upon the premise that the instant period delay can only be excluded from the computation of Rule 1100 if it falls within the expressed terms of Section (d) of the Rule. It is asserted that since (d) is silent as to circumstances such as those presented in this case, there is no basis for excluding the challenged period from the time in which trial should have been commenced. An acceptance of such a construction of the Rule would permit a result completely at odds with the purposes sought to be achieved by the promulgation of that Rule.

One of the purposes of Rule 1100 is to protect the right of an accused to a speedy trial.*fn6 "[T]he ultimate goal is to require all cases to be tried within 180 days from the filing of a complaint . . . ." Comment to Rule 1100. Rule 1100 was drafted in accordance with the rationale of Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), wherein we concluded that the only effective means of insuring the right of an accused to a speedy trial was to set forth a "stated time period within which ...

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