concurring:
The majority opinion, ably written by Judge Wekselman, is unquestionably correct in holding that the re-trial granted by the Supreme Court in 1977 is not barred by the double jeopardy clause of the United States Constitution. My purpose in writing this concurring opinion is to suggest that the meritless, if not frivolous, nature of appellant’s claim and the delaying effect it has had upon the start of the new trial recommend a reconsideration by the Supreme Court of its decision in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
Appellant’s trial occurred in 1972. On direct appeal, the Supreme Court remanded for a hearing under the Post Conviction Hearing Act. Much later, a second appeal to the Supreme Court gained for appellant a new trial on the grounds that trial counsel had been ineffective. Two years *486more have now elapsed, and that new trial has yet to begin. The delay has been caused by a meritless application to dismiss on the grounds that a second trial is barred by principles of double jeopardy. After the trial court had denied appellant’s application, he appealed. Bolden conferred upon him the right to appeal from the interlocutory order of the trial court which denied his application. On appeal, he argues that the new trial already ordered by the Supreme Court is improper and cannot be held because it would place him twice in jeopardy for the same offense.
This is not an isolated instance. With increasing frequency the commencement of court awarded new trials is being delayed while orders denying meritless double jeopardy issues are being appealed. This delay is unfortunate and unnecessary. It makes a mockery of the 120 day re-trial requirement of Pa.R.Crim.P. 1100(e). It provides a defendant with an automatic one to two year delay if he or she wishes to postpone the trial. It means that in most instances where a new trial has been granted by a court, an application to dismiss on the grounds of double jeopardy will follow and, if denied, will be appealed.
Delay will be eliminated and frivolous double jeopardy claims will be discouraged if the right to appeal from interlocutory determinations is delayed until a final judgment has been entered. The advantages of such a rule are many. They include a speedier second trial, a greater likelihood of achieving a correct and just result while events are fresh in the minds of witnesses, and the elimination of multiple appeals. These advantages can be achieved without prejudicing a defendant’s right to raise and preserve the issue for later appellate review.
Reconsideration of Bolden may also forestall the issues of waiver and ineffective assistance of counsel which are now being spawned by failures of counsel to pursue the appeal rights granted thereby.
NIX, J., joins in this concurring opinion.