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COMMONWEALTH v. WERNER (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
WERNER, APPELLANT



Appeal from order of Superior Court, Nos. 277, 278, and 279, Oct. T., 1970, affirming judgments of sentence of Court of Common Pleas of Montgomery County, April T., 1964, Nos. 4, 4-1, and 4-2, in case of Commonwealth of Pennsylvania v. Michael Werner.

COUNSEL

Louis Lipschitz, for appellant.

Parker H. Wilson, First Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: O'brien

[ 444 Pa. Page 460]

In 1964, appellant was convicted on charges of robbery, burglary and conspiracy and was sentenced to a term of imprisonment aggregating not less than twelve nor more than twenty-four years. He appealed the judgment of sentence to the Superior Court and, for reasons not here relevant, the Superior Court reversed the judgment of sentence and granted appellant a new trial. Commonwealth v. Werner, 206 Pa. Superior Ct. 498, 214 A.2d 276 (1965). On retrial, appellant was once again convicted. His post-trial motions were denied,

[ 444 Pa. Page 461]

    and he was sentenced to terms of imprisonment aggregating not less than fourteen nor more than twenty-eight years. An appeal to the Superior Court resulted in an affirmance of the judgment of sentence by a divided court. Commonwealth v. Werner, 217 Pa. Superior Ct. 78, 266 A.2d 803 (1970). We allowed an appeal.

Appellant raises five issues on appeal. He first contends that he was denied his constitutional right to a speedy trial by the delay of the Commonwealth in retrying him. The Superior Court had granted a new trial in November of 1965; in April of 1966, we denied the Commonwealth's petition for the allowance of an appeal. Appellant then filed pretrial discovery motions, which were denied in April of 1967 by the Court of Common Pleas and by the Superior Court and this Court in September of 1967. The case was then ready for trial, but it was not listed until December 9, 1968, some fifteen months later, and was not actually tried until several months thereafter. In addition to the seemingly inordinate delay by the Commonwealth in proceeding to trial, appellant argues that two defense witnesses who appeared at his first trial had died during the period of the delay and were, therefore, unavailable to him on the retrial. It is clear that criminal defendants have a right to a speedy trial. However, the mere fact that there is a lapse of what appears to be too long a period before trial does not entitle a criminal defendant to discharge, unless he was prejudiced as a result of the delay or suffered adverse consequences. Obviously, a criminal defendant should not suffer long imprisonment awaiting trial. Nor should he be required to suffer the anxiety and public suspicion attendant upon unresolved criminal accusations. Additionally, of course, he should not be required to suffer a time lapse so great that the means of establishing his innocence may be lost.

[ 444 Pa. Page 462]

In the instant case, appellant was not incarcerated, and it is to be noted that between the time of the grant of a new trial by the Superior Court and the actual second trial, a long period of time was taken up in pretrial motions by the appellant and his appeal from their refusal. Nor is there any record support for appellant's contention that he tried repeatedly to have the matter set for trial between September of 1967 and December of 1968. The only thing which the record supports is a letter by appellant's counsel to the district attorney in September of 1968, calling the matter to the attention of the district attorney. The district attorney moved with dispatch thereafter to bring the matter to trial. The district attorney argues that it was by inadvertence on his part that the matter was not brought to trial earlier. The only matter which remains relative to this contention is whether appellant was prejudiced by the absence of witnesses who appeared on his behalf at the first trial, whose testimony, incidentally, was not sufficient to create a reasonable doubt in the minds of those jurors.

By law, the testimony of witnesses who have testified in criminal proceedings before a court of record and who have been subject to cross-examination is not lost if they should die before final resolution of the matter. The record of such testimony is competent evidence at a retrial of the same criminal issue. 19 P.S. § 582, Act of May 23, 1887, P. L. 158, § 3. In this case, the testimony of one of the deceased witnesses was, in fact, introduced at the second trial from the record of the first trial. In the case of the other witness, the evidence of his death was simply insufficient. The missing witness was one Allen First. Appellant ...


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