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COMMONWEALTH v. MCCLOUD (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
MCCLOUD, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1967, Nos. 283 and 284, in case of Commonwealth of Pennsylvania v. Charles A. McCloud.

COUNSEL

Edward H. Weis and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 218 Pa. Super. Page 231]

A complaint was filed against Charles A. McCloud on March 28, 1967 charging him with the use and sale of narcotics on August 8, 15, and 24, 1966. On April 3, 1967, he was arrested.

Prior to trial, McCloud made a motion to dismiss the indictments contending that the delay from the time of the alleged first sale of narcotics, August 8, 1966,

[ 218 Pa. Super. Page 232]

    to the day of his arrest, April 3, 1967, was in violation of his constitutional right to a speedy trial under the Sixth Amendment and to due process of law under the Fifth Amendment to the Constitution of the United States, as applied to the states through the Fourteenth Amendment.

The lower court disagreed and McCloud stood trial without a jury. The trial court found him guilty of the charges against him and he has now appealed, contending his motion to dismiss the indictments should have been granted and that the court below failed to consider sufficiently the constitutional issue raised by him.

Defendant relies heavily on the opinion of the United States Court of Appeals for the District of Columbia in Ross v. United States, 349 F. 2d 210 (D.C. Cir. 1965), holding that the pre-arrest delay of seven months was, in that case, violative of the defendant's constitutional rights. However, that decision, as has been repeatedly pointed out by subsequent cases hereafter discussed, was based on a situation not here present, namely, on the weakness of the identification testimony which consisted solely of the testimony of one police officer who had no personal recollection of the incident in question, having participated in a substantial number of virtually identical transactions in a short period of time during which he had only one brief encounter with the defendant. The officer in the Ross case relied heavily during his court testimony on entries in his notebook made by him at the time of his only purchase of narcotics from defendant. The recurring spectacle of convictions based on such identification testimony caused the concern expressed in the Ross opinion and resulted in the holding that the defendant's rights had been violated by such procedure. As stated in United States v. Napue, 401 F. 2d 107 (7th Cir. 1968), cert. denied, 393

[ 218 Pa. Super. Page 233]

U.S. 1024, 89 S. Ct. 634, rehearing denied, 393 U.S. 1112, 89 S. Ct. 858, the Court in the Ross decision "was concerned about a pattern of cases and its supervisory responsibility for criminal proceedings involving the District of Columbia Metropolitan Police force." In fact, as noted in Whitted v. United States, 411 F. 2d 107 (9th Cir. 1969), "The Court [in Ross ] sidestepped the question of ...


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