Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1964, Nos. 764, 765, 769, and 772, in case of Commonwealth of Pennsylvania v. Oscar Pearson.
Albert John Snite, Jr., and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Michael Henry, David Richman, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 230 Pa. Super. Page 306]
This appeal is from a denial of a petition for post-conviction relief without an evidentiary hearing.
On May 7, 1965, the appellant Oscar Pearson was convicted on eleven bills of indictment each charging him with aggravated robbery. Although sentence was suspended on three of the bills, appellant received consecutive sentences of five to ten years on the remaining eight bills. Appellant appealed to this Court and we affirmed the judgments of sentence. The Supreme Court of Pennsylvania granted allocatur and subsequently reversed the judgments and ordered a new trial. Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967). A retrial resulted in convictions on only five of the original bills of indictment, on which appellant received prison terms of two to four years consecutively. Appellant's appeal to our Court was once again affirmed per curiam. Our Supreme Court granted allocatur.
In a 4-3 decision,*fn1 the Supreme Court rejected appellant's argument that he was denied his right to a speedy trial. The Court pointed out that the appellant had failed to demonstrate any prejudice from the delay. Appellant relied on the fact that the length of the delay
[ 230 Pa. Super. Page 307]
was sufficient to establish a violation of his constitutional rights in light of the Court's opinion in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).
In Hamilton, our Supreme Court declared that it would ask that the Criminal Procedural Rules Committee fashion a new Rule setting a time limit in which cases could be brought to trial, the violation of which would result in an immediate dismissal if the delay were not caused by the defendant himself.*fn2 Recognizing that the new Rule was more a matter of procedural necessity for fairness, rather than a constitutional mandate, the Court held that a per se violation of the time limitations would be held to exist only in cases coming to trial after its decision in Hamilton.
Although appellant's appeal was filed after Hamilton, the Court, as it has in a series of cases following Hamilton, held that a showing of prejudice was a requirement to a dismissal of a criminal indictment in all cases tried before its decision. See, e.g., Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973). Relying on Barker v. ...