No. 62 January Term, 1979, Appeal from the Judgment of the Superior Court Affirming the Judgment of Sentence at (October Term, 1976 No. 2295), Court of Common Pleas, Philadelphia, Criminal Trial Division at March Term, 1976, 1204-1205.
John W. Packel, Assistant Public Defender, Chief, Appeals Div., Jeffrey Shender, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Mr. Justice Roberts filed an Opinion in Support of Reversal in which Mr. Chief Justice O'brien and Mr. Justice Flaherty join.
Mr. Justice NIX, Mr. Justice LARSEN, and Mr. Justice KAUFFMAN would dismiss the appeal as improvidently granted.
Mr. Chief Justice O'BRIEN, Mr. Justice ROBERTS, and Mr. Justice FLAHERTY would reverse the order of the Superior Court. The order of the Superior Court, therefore, is not disturbed.
Opinion IN SUPPORT OF REVERSAL
Appellant Richard Neal was convicted in the Municipal Court of Philadelphia for retail theft and conspiracy. He received concurrent sentences of eleven and one-half months to five years for retail theft and five years' probation for conspiracy. Appellant then exercised his right to a trial de novo in the court of common pleas, pursuant to 42 Pa.C.S. § 1123(a)(2) and Pa.R.Crim.P. 6007.
On May 7, 1976, appellant, who was incarcerated in Graterford State Penitentiary for an unrelated offense, was brought to court in Graterford Prison clothing -- purple pants and purple shirt, with a prison number on the shirt. Immediately upon his appearance in court, prior to the commencement of any proceedings, appellant filed a motion for a continuance so that he could proceed in civilian clothes ...