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COMMONWEALTH PENNSYLVANIA v. WAYNE PAUL BURKETT (04/24/86)

decided: April 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
WAYNE PAUL BURKETT, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Cambria County at No. 0788-1984.

COUNSEL

James H. Stratton, Jr., Ebensburg, for appellant.

Ralph F. Kraft, Assistant District Attorney, Johnstown, for Com., appellee.

Brosky, Olszewski and Popovich, JJ.

Author: Popovich

[ 352 Pa. Super. Page 352]

This is an appeal from an order denying a Motion to Quash*fn1 filed by the appellant, Wayne Paul Burkett. We quash.

The facts in this case begin with the appellant being charged with making a false statement under oath while testifying at the trial of Commonwealth v. John Verilla, No. 0576-1983 (C.P. Cambria).

A preliminary hearing was conducted and resulted in the appellant, following a district justice finding that the prosecution had presented a prima facie case, being bound over for court. In the interim, the appellant was re-committed to the Blair County Prison to serve the remaining sentence on an unrelated conviction.

On December 24, 1984, the appellant filed a pro se Motion to Quash contending that the prosecution had failed to establish that he had committed the offense set forth in the complaint -- perjury. Wherefore, he sought a dismissal of the complaint and his discharge. In an addendum to the motion, it was argued that the prosecution engaged in

[ 352 Pa. Super. Page 353]

    misconduct by "tactically maneuever [sic] defendant's answers" on cross-examination so they "could be construe[d] to be false[] for the purpose of charging him . . . with perjury." Also, the appellant alleged that he was placed "twice in jeopardy" by being held for trial in the face of insufficient evidence. On January 2, 1985, the motion was denied.

On January 7, 1985, the appellant filed a pro se notice with the Clerk of Courts of Cambria County that he was appealing the order. In this notice, the appellant acknowledged that his appeal was interlocutory, but he asserted that Rules 1701(a), 311(a)(7), (d)(ii) and 501 of the Pennsylvania Rules of Appellate Procedure, along with Sections 701 and 742 of the Judicial Code, 42 Pa.C.S.A., authorized the appeal as "a matter of right". Additionally, he set down that Rules 1701(a) and 341 "stay[ed] any further action in th[e] matter" with his notice of appeal. Lastly, upon application filed with the court below, the appellant was permitted to proceed in forma pauperis.

By per curiam order issued May 1, 1985, this Court remanded for the disposition of the appellant's motion for the appointment of counsel. Prior to the remand, the court below relieved initial (appointed) counsel of his obligation to represent the accused, and it directed appellant to file for representation with the public defender's office.

During the pendency of the appeal, newly selected counsel filed an omnibus pre-trial motion, which included a: 1) Motion To Quash Information; 2) Motion For Polygraph Examination; 3) Motion To Transcribe Testimony (of the preliminary hearing); 4) Motion For Psychiatric Examination; and 5) Motion To Sever. A hearing was held on February 27, 1985, the outgrowth of which was the grant of all but Points ...


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