No. 506, January Term, 1977, Appeal from Judgment of Sentence of Bucks County Court of Common Pleas, Criminal Division, at 499-500 of 1975 Sessions
Nathan Criste, Doylestown, Bucks County, for appellant.
Kenneth G. Biehn, Dist. Atty., Bucks County, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., dissents, believing that no prejudice has been shown. Reargument denied; Larsen, J., dissenting.
Appellant was found guilty of first degree murder, robbery, and related offenses by a jury arising out of the death by beating of Joseph Diamanti at his sporting goods store in Bucks County. Although a number of issues have been raised for our consideration, we need only discuss two. First, whether appellant is entitled to a reversal of this conviction and further prosecution barred for the failure of the Commonwealth to bring him to trial within 180 days from his arrest pursuant to Rule 1100. Second, whether he is entitled to a new trial because he was not given the opportunity, in violation of former Criminal Procedure Rule 203, to challenge the array of the grand jury that indicted him. For the reasons set forth below, we believe that the latter remedy is appropriate and grant a new trial.*fn1
Appellant's trial began 349 calendar days after the complaint was filed and appellant claims that Rule 1100 therefore barred his trial on these charges. The following chronology is required to fully understand the question raised. On December 28, 1974, appellant and two other men robbed and severely beat the owner of a sporting goods store. On January 10, 1975, appellant was arrested in New Jersey on unrelated charges. On February 9, the victim died as a result of the beating and on February 11, a criminal complaint was filed charging appellant with murder. Bucks County officials on February 13 forwarded a copy of the complaint and arrest warrant to and lodged a detainer on appellant with New Jersey officials where appellant was then incarcerated for offenses against that jurisdiction. On February 21, appellant wrote to the Bucks County District Attorney disclosing his location in a New Jersey jail, requested a speedy trial, and waived extradition to Pennsylvania.*fn2 On April 2, Stokes, a co-participant, agreed to testify against appellant, but on April 5 he changed his mind. When the bill of indictment charging appellant with murder was presented to the grand jury on April 18, Stokes invoked his fifth amendment privilege against self-incrimination and the grand jury dismissed the indictment for lack of evidence. The Bucks County authorities notified the New Jersey officials that the arrest warrant and the detainer lodged against appellant were withdrawn and the papers that had been forwarded by Bucks County were returned on April 23. August 11 represented the 180th day from the filing of the complaint.
On September 15, 1975, the Bucks County District Attorney learned that another co-participant -- Douglas Johnson, appellant's brother -- was then being incarcerated in Georgia. The District Attorney then had Douglas returned to Pennsylvania on October 21 and on November 19, Douglas plead guilty to the robbery of the victim and agreed to testify against appellant. That same day, November 19, the District Attorney obtained leave of court to re-submit appellant's indictment to a new grand jury. Two days later, November 21, appellant was returned to Pennsylvania from a New Jersey jail. On December 5, Douglas testified before the second grand jury which then approved the murder indictment against appellant. That same day appellant was arraigned. Trial began on January 26, 1976.
The Commonwealth claims that the total elapsed time for Rule 1100 purposes is only 112 days. They reach this sum by excluding the time between the refusal of the first grand jury to indict and the approval of the indictment by the second grand jury. There were 66 days between the filing of the complaint and the dismissal by the first grand jury, and 52 days between the indictment by the second grand jury and the commencement of trial, a total of 112 days. We agree that the period between the first and second grand juries should be excluded.
Rule 1100 is an administrative method by which we seek to give substance to the constitutional guarantee of a speedy trial for criminal defendants. See Commonwealth v. Hamilton, 449 Pa. 297, 308-09, 297 A.2d 127, 133 (1972). Absent a definite rule such as Rule 1100, and because "the right to speedy trial is a more vague concept than other procedural rights," it is "impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). The speedy trial guarantee is "concerned with limiting the period of 'anxiety and concern accompanying public accusation.' United ...