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COMMONWEALTH PENNSYLVANIA v. JAMES T. BAILEY (10/03/75)

decided: October 3, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES T. BAILEY, A/K/A THOMAS MORGAN, APPELLANT



COUNSEL

John J. Dean, John H. Corbett, Jr., John B. Yoedt, Bruce A. Carsia, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result.

Author: Roberts

[ 463 Pa. Page 356]

OPINION OF THE COURT

In June, 1970, appellant James Bailey was found guilty by a jury of murder in the second degree for the slaying of Helen Robinson. A judgment of sentence of imprisonment for ten to twenty years was imposed and an appeal taken to this Court. On January 19, 1973, we reversed, finding that the trial court had erred in excluding certain evidence and in its charge to the jury. Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973). On September 25, 1973, a second trial before a jury commenced, resulting in a verdict of guilty of voluntary manslaughter on September 28, 1973. Post-verdict motions were denied

[ 463 Pa. Page 357]

    and appellant was sentenced to imprisonment for six to twelve years*fn1 and to pay a fine of 6 1/4 cents and the costs of prosecution. This appeal followed.*fn2

Appellant contends that he was denied a speedy retrial after the reversal of his initial conviction*fn3 and that the court erroneously instructed the jury. We find no merit in either contention and therefore affirm.

Before we reach appellant's contentions, we must consider the Commonwealth's claim that they were not properly preserved for appellate review. Appellant's written post-verdict motions were simply boiler-plate challenges to the sufficiency of the evidence. His present claims were presented as supporting the post-verdict motions only at oral argument on those motions. The court en banc noted that this method of presentation failed to comply with the requirements of Rule 1123(a) of the Pennsylvania Rules of Criminal Procedure but nevertheless considered the claims on their merits and rejected them. The Commonwealth contends that failure to properly present these claims in post-verdict motions precludes their consideration on appeal, relying upon Commonwealth v. Blair, 460 Pa. 31, 33 n. 1, 331 A.2d 213, 214 n. 1 (1975).

In Blair, the written post-verdict motions were identical to those involved here and counsel also made more

[ 463 Pa. Page 358]

    specific oral motions which were considered by the trial court on their merits. There we wrote:

"The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial and appellate courts."

Id.

However, because the long-standing practice of some courts of accepting and ruling upon oral motions tended to mislead counsel into relying upon that practice, we did consider the matters tendered by Blair in his oral motions. Similarly, where, as here, all of the relevant events occurred before Blair served notice that compliance with Rule 1123(a)'s requirement of written motions would henceforth be required, it would be unfair to impose forfeiture of claims of error solely on the basis of failure to present written motions based upon those claims. This is especially so where the trial court condoned the non-compliance with Rule 1123(a) by passing upon the merits of the issues tendered orally. Consequently, we conclude that appellant's contentions are properly before us.

I

Appellant's speedy trial claim is based on the following facts. Appellant was arrested on September 19, 1969, and indicted for murder on December 9, 1969. A jury trial commenced on June 1, 1970, and concluded on June 4 with a verdict of guilty of murder in the second degree. Post-verdict motions were denied on March 1, 1971, and an appeal to this Court ensued.

At the time appellant was arrested he was on parole from a federal sentence for armed robbery of an insured savings and loan association. On October 3, 1969, the Department of Justice initiated proceedings for the revocation

[ 463 Pa. Page 359]

    of appellant's parole charging that appellant had violated the conditions of parole (1) by committing various crimes in the court of the episode in which the present offense was committed*fn4 and (2) by having a firearm in his possession when arrested without being authorized to possess a firearm. A parole detainer was therefore lodged against appellant. At some time after October 3, not shown by the record, ...


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