Appeal from order of Superior Court, Oct. T., 1971, Nos. 41 to 45, inclusive, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1964, Nos. 764, 765, 769, 772 and 774, in case of Commonwealth of Pennsylvania v. Oscar Ewing Pearson.
William Goldstein, for appellant.
Deborah E. Glass, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion.
On May 7, 1965, Oscar Pearson, the appellant, was convicted by a jury in Philadelphia on eleven separate indictments each charging aggravated robbery.*fn1 The indictments were numbered 764 to 774, inclusive, June Term, 1964. A prison sentence of five to ten years was imposed on each of eight indictments, the sentences to run consecutively. Sentence was suspended on three indictments, namely, those numbered 770, 773 and 774. The judgments were affirmed by the Superior Court, but this Court granted allocatur. Subsequently, on September 26, 1967, we reversed the judgments and
ordered a new trial because of the use at trial of evidence secured by the police through means constitutionally impermissible. See 427 Pa. 45, 233 A.2d 552 (1967).
On June 1, 1970, the new trial began, but in this instance Pearson was called upon to defend only six indictments or those numbered 764, 765, 767, 769, 772 and 774. He was acquitted by the jury of the charges embraced in indictment No. 767, but was found guilty on the other five indictments. A prison sentence of two to four years was then imposed on each of the five indictments upon which Pearson had been convicted at this trial (including indictment No. 774), the sentences to run consecutively. On appeal, the Superior Court unanimously affirmed the judgments, and we again granted allocatur.
Pearson initially contends the delay of more than thirty-two months between our mandate of September 27, 1967, ordering a new trial, and the commencement of the new trial on June 1, 1970, violated his constitutional right to a speedy trial. This issue was raised in the trial court via a petition for habeas corpus*fn2 and was decided adversely to Pearson after an evidentiary hearing. The court found that the delay was due to the fact that Pearson had difficulty in securing counsel to prepare and defend him at trial. In this connection, the record discloses the following facts.
As of September 26, 1967, Pearson was represented by Jerold G. Klevit, Esq., but Mr. Klevit withdrew from the case in April 1968, after assuming a position with the Solicitor's Office in Philadelphia. Subsequently (the exact date is not ascertainable from the files), Mary Bell Hammerman, Esq., was appointed by the
court to represent Pearson, and on October 24, 1968, she obtained a directive from the court ordering the Commonwealth not to try Pearson in less than two months. In March 1969, Attorney Hammerman withdrew from the case with Pearson's concurrence. In May 1969, the office of the Public Defender of Philadelphia entered an appearance on Pearson's behalf and filed a petition for habeas corpus seeking his discharge alleging violation of the right to a speedy trial. When notified he was to be represented by the office of the Public Defender, Pearson declined this representation. His present counsel, William Goldstein, Esq., was appointed by the court early in June 1969, and entered his appearance on Pearson's behalf on June 10th.
The case was listed for trial on July 1st, August 7th, October 27th, December 2nd of 1969, and on January 19th, March 4th, and April 22nd of 1970. In each of these instances, the trial was continued, but the record fails to disclose who was the moving party or the reason for the postponements. However, at the habeas corpus hearing, Pearson testified, wtihout contradiction, that ...