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decided: November 20, 1974.



J. Charles Short, Daniel M. Rendine, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief Appeals Div., Mark Sendrow, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 459 Pa. Page 343]


Appellant Paul D. Ware was convicted by a jury of the 1963 murder of Miss Florence Grauley, age 83. After denial of appellant's post-trial motions, he was sentenced to life imprisonment. This appeal followed.*fn1 Appellant raises a variety of claims, all of which we find to be without merit. We affirm.

Appellant first contends that he has been denied a speedy trial in violation of the United States*fn2 and Pennsylvania*fn3 Constitutions. Resolution of this claim requires consideration of the long history of this case.

Ware was arrested on September 27, 1963. He confessed to the murder of Miss Grauley and other crimes on October 3 and was indicted by the grand jury on December 12. However he was declared incompetent to stand trial and was accordingly committed on January 8, 1964, to Farview State Hospital.

He was discharged from Farview on July 19, 1967, having been found competent. On April 16, 1968, appellant filed a motion to suppress his confession as obtained in violation of his constitutional rights. After a hearing, the court suppressed the confession on May 23, 1968, on

[ 459 Pa. Page 344]

    the ground that Ware had not received Miranda*fn4 warnings.

The Commonwealth determined that, without his confession, it had insufficient evidence to proceed to trial. Consequently, it moved on December 12, 1968, for a nolle prosequi of the indictment, which was granted with the consent of appellant's counsel.

The decision of the United States Supreme Court in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), caused the Commonwealth to believe that Ware's confession might be admissible despite the absence of Miranda warnings. Accordingly, on August 11, 1969, it petitioned for removal of the nol pros order and vacation of the suppression order. Removal of the nol pros was granted, over the objection of appellant, on December 11, 1969, and the suppression order was vacated on June 19, 1970.

On June 25, 1970, a new suppression hearing was held, and appellant's motion to suppress was denied on November 13, 1970. Upon the joint petition of appellant and the Commonwealth, the court certified its order and we permitted an appeal. On December 20, 1971, we reversed the denial of the motion to suppress and held that appellant's confession was inadmissible. Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). The Commonwealth petitioned the Supreme Court of the United States for a writ of certiorari, which was granted on March 20, 1972. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453 (1972). However, on April 24, 1972, the writ of certiorari was vacated and the petition denied, "it appearing that the judgment below rests on an adequate state ground." Pennsylvania v. Ware, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972).

[ 459 Pa. Page 345]

Thereafter, on July 3, 1972, appellant filed an application for dismissal under Pa.R.Crim.P. 316, contending that he had been deprived of his right to a speedy trial. The application was denied on September 26, 1972. Trial finally began on June 21, 1973, 117 months after his arrest.

Though the right to a speedy trial is "one of the most basic rights preserved by our Constitution," Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967),*fn5 it is also "a more vague concept than other procedural rights. It is . . . impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972).*fn6 Vagueness results at least in part from the incompatibility of haste with the procedural safeguards designed to effectuate other rights of the accused and to insure that he receives due process.

"[I]n large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself."

United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). Thus, it has long been recognized that

"The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances."

[ 459 Pa. Page 346]

    mentally incompetent to participate in his defense.*fn8 This period of delay, necessary for the protection of appellant's right to a fair trial, is obviously justifiable.*fn9

The second longest period is the time consumed by pretrial proceedings, including motions and an interlocutory appeal, a total of 33 months. It was intimated by the court below that assessment of the delay resulting from pretrial proceedings requires a determination of the moving party and, if the defendant was the moving party, whether his action was taken to vindicate his constitutional rights. Barker v. Wingo, supra, teaches that the balancing test is not a mechanical process of parsing the pleadings.*fn10 We believe that a reasonable amount of time consumed by the disposition of motions and interlocutory appeals not made for purposes of delay, regardless of who is the moving party, is justifiable delay. See ABA Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.3(a) (Approved Draft, 1968); see also Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283, 1286 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969).

[ 459 Pa. Page 348]

Another period of delay, 12 months, was caused by the nol pros sought by the Commonwealth. In the particular circumstances of this case, we do not think the delay unjustifiable. See ABA Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.3(f) (Approved Draft, 1968). Because appellant's counsel consented to the nol pros,*fn11 this is not a case of "the indefinite postponement of trial over the objection of the accused . . . ." Commonwealth v. Leaming, 442 Pa. 223, 227, 275 A.2d 43, 45 (1971); see Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, (1967); Commonwealth v. Gant, 213 Pa. Super. 427, 249 A.2d 845 (1968). Two other short periods of delay are clearly excusable. Two months is a reasonable time for action by the grand jury. One month, certainly a reasonable period, was consumed in proceedings for appellant's commitment to Farview.

Thus, 91 months have been accounted for. The remaining 26 months remain unexplained and unexcused. However, consideration of the other factors of the Barker test leads us to conclude that appellant's right to a speedy trial has not been violated.

First, there is nothing in the record indicating that appellant was prejudiced*fn12 in his defense by the delay. He has suffered the inherent prejudice of long pretrial incarceration.*fn13 But we are unable to conclude that he has suffered any impairment of his defense, which is the most serious type of prejudice

[ 459 Pa. Page 349]

"because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past."

Barker v. Wingo, supra, at 532, 92 S.Ct. at 2193.

There is here not the slightest hint that appellant's defense has been impaired by delay, no claims of dead, forgetful, or unavailable witnesses.*fn14 Thus, this case differs markedly from those where specific impairment of the defense was a factor leading to a conclusion that the right to a speedy trial has been violated: Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970) (deaths of two witnesses, unavailability of a witness, loss of police records); Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 18 (1974) (loss of memory by a witness, death of a witness, and unavailability of two witnesses); Commonwealth v. Hamilton, 449 Pa. 297, 301, 297 A.2d 127, 129 (1972) (death of a witness); Commonwealth v. Clark, 443 Pa. 318, 331-332, 279 A.2d 41, 48-49 (1971) (defendant's loss of memory, unavailability of five witnesses, loss of physical evidence).

More importantly, the record demonstrates that appellant did not want a speedy trial. It is true that he objected to the removal of the nol pros on the ground that trial at that time would violate his speedy trial right and twice moved to dismiss on the same ground, in July, 1972, and at trial. However, he never demanded an immediate trial; see Barker v. Wingo, supra, at 535, 92 S.Ct. at 2194.*fn15 His counsel's consent to the Commonwealth's

[ 459 Pa. Page 350]

    petition to nol pros contrasts sharply with the demands for a speedy trial made by the defendants in Klopfer v. North Carolina, supra; Commonwealth v. Leaming, supra; and Commonwealth v. Gant, supra. We conclude, as did the Supreme Court in Barker v. Wingo, supra, that

"we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial."

407 U.S. at 536, 92 S.Ct. at 2195.*fn16

In light of the absence of specific prejudice and appellant's failure to demand a speedy trial, we conclude that the balance of the relevant factors indicates appellant has not been denied his right to a speedy trial.

Appellant's next assignments of error relate to the issues of testimonial competency. At trial the Commonwealth relied primarily on admissions appellant made while he was an inmate at the Farview State Hospital. Three witnesses who had also been Farview inmates testified to hearing appellant's admissions. John Wesley Chase*fn17 and Clarence Marshall*fn18 testified that Ware admitted

[ 459 Pa. Page 351]

    burglarizing the home of Miss Grauley and murdering her. Edward Whelan reported overhearing a conversation in which Ware stated that "he had a mission in life to eliminate or destroy elderly white persons."

Appellant's argument is two-fold. First, he contends that Chase, Marshall, and Whelan were mentally incompetent, and thus should not have been permitted to testify. Second, he contends he was mentally incompetent at the time he made the incriminating statements, which accordingly should not have been admitted into evidence. We disagree on both counts.

In general, the testimony of any person, regardless of his mental condition, is competent evidence unless it ...

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