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COMMONWEALTH v. HICKS (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
HICKS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1969, Nos. 1636 and 1640, in case of Commonwealth of Pennsylvania v. MacArthur Hicks.

COUNSEL

Ronald J. Brockington, for appellant.

David Richman, Geoffrey H. Keppel, 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 Price, J.

Author: Price

[ 231 Pa. Super. Page 274]

This appeal comes before the court from the judgment of sentence of the Court of Common Pleas. Appellant's only argument here is that he was denied his constitutionally-guaranteed right to a speedy trial.*fn1 Appellant filed the proper pretrial motion to quash the indictment and there is no question that he has not waived this right. Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285 (1974). However, after examining appellant's contentions, we find them to be without merit and will, therefore, affirm the judgment of sentence of the lower court.

When determining whether the appellant has been denied a speedy trial, the courts of this Commonwealth apply the "balancing test" promulgated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).*fn2 We examine four factors in weighing the merits of appellant's claim; (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant.

If the delay has been sufficiently long, it acts as a triggering mechanism, and we must then examine the other factors to determine if the delay is justified or excused. In the present case, there was a delay of approximately three and one-half years between arrest and trial. This delay is prima facie sufficient to require an examination of the other factors.

The record indicates 31 continuances were requested and granted between November 10, 1969, and November 20, 1972. Many of these continuances were asked for or caused by the defense, and as to those caused

[ 231 Pa. Super. Page 275]

    or requested by the prosecution, we see no deliberate attempt to hamper the defense.*fn3 Where the appellant

[ 231 Pa. Super. Page 276]

    has, at least in part, caused the delay by requesting the continuances, he may not later complain that his right to a speedy trial was violated. See Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Meehan, 198 Pa. Superior Ct. 558, 182 A.2d 212 (1962); ...


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