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COMMONWEALTH v. WILSON (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
WILSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1973, No. 2319A, in case of Commonwealth of Pennsylvania v. George T. Wilson a/k/a Thomas Johnson.

COUNSEL

John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.

Robert L. Campbell and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 238 Pa. Super. Page 342]

This is an appeal from the judgment of sentence imposed upon the appellant, George T. Wilson, following his conviction by a jury of armed robbery.

The events giving rise to appellant's arrest may be summarized as follows. On January 6, 1973, at approximately 7:30 P.M., the appellant and three other men entered a cleaning store in the City of Pittsburgh. Appellant requested change from the store's manager, Ralph Mosco. When Mr. Mosco opened the cash register drawer one of the appellant's accomplices pulled a gun on him and proceeded to take $21.00 from the register. Immediately after the four men departed, Mr. Mosco telephoned the police and told them that he recognized the appellant and one of the other men because both had patronized the store in the past. Two weeks later Mr. Mosco was shown a series of photographs from which he selected the appellant and three other men. Appellant was subsequently arrested on February 9, 1973.

Appellant advances two arguments on this appeal: (1) that he was deprived of his constitutional right to a speedy trial; and (2) the lower court erred in admitting a testimonial reference to a photographic identification. We find both contentions unpersuasive.

Appellant's Sixth Amendment argument is predicated on the following facts. The robbery, as noted earlier, was committed on January 6, 1973. Complaints were filed against all four men on January 27, 1973, and the appellant was arrested on February 9, 1973. True Bills of Indictment were returned by the March, 1973 Grand Jury. Trial was originally scheduled for April 18, 1973. However, five postponements of record occurred between this first date and the eventual date of the commencement of trial, on February 13, 1974. Unfortunately, this trial terminated in a mistrial and appellant was eventually tried on March 27 and April 1, 1974. Thus, the period of delay from appellant's arrest until his first trial was approximately twelve months.

[ 238 Pa. Super. Page 343]

Initially, it is to be noted that Rule 1100 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, which currently prescribes the time limits in which a trial shall commence, is inapplicable to the case at bar: the reason being that Rule 1100, by its very terms, applies only to prosecutions commenced by complaints that are filed after June 30, 1973. Instantly, the complaint was filed on January 27, 1973. In Commonwealth v. Coffey, 230 Pa. Superior Ct. 49, 53 (1974), we stated that:

"To cases not affected by the adoption of Rule 1100, our courts have applied the balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), to determine whether an accused has been denied his right to a speedy trial. Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Under this test, the related factors to be considered together are: the length of the delay; the reason for the delay; the defendant's assertion of his right to a speedy trial; and the prejudice to the defendant from the delay."

Application of this balancing test leads us to conclude that appellant's right to a speedy ...


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