Appeal from judgment of sentence of Court of Common Pleas of Fayette County, No. 229 of 1972, in case of Commonwealth of Pennsylvania v. James M. Watson.
Simon B. John, Assistant Public Defender, for appellant.
Conrad B. Capuzzi, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Spaeth, J., concurs in the result.
[ 239 Pa. Super. Page 429]
Appellant contends that the charges against him must be dismissed because he was deprived of his constitutional right to a speedy trial. Alternatively, appellant contends that he is entitled to a new trial because the lower court erred in admitting his confession into evidence.
On January 21, 1971, appellant was arrested and charged with the June 1, 1970 burglary of a Perryopolis drug store.
As early as August 28, 1970, the arresting officer, State Police Officer Fidel Ambrose, was in possession of a written statement of appellant's co-conspirator which implicated appellant, but the record does not indicate why appellant was not arrested until five months later. On February 15, 1971, appellant waived a preliminary hearing, waived his Fifth Amendment rights, and gave a full confession to Officer Ambrose. Again for some unexplained reason, the criminal complaint against appellant was not filed until February 14, 1972, more than one year after appellant had confessed, and more than twenty months after the crime had been committed. The Fayette County Grand Jury returned an indictment against appellant on May 11, 1972, and trial was scheduled for June 7, 1972, but was continued, apparently because appellant was incarcerated on a separate charge in the Western State Penitentiary. Trial was not rescheduled until the March Term of 1974, but was continued because appellant did not have counsel present. Trial was then rescheduled for June 20, 1974.
On June 17, 1974, appellant filed a motion to quash the indictment, alleging that he had been denied a speedy trial. The Commonwealth did not answer the petition, and the case went to trial on June 20, 1974. Before trial commenced, defense counsel asked the court
[ 239 Pa. Super. Page 430]
to rule on the motion. The lower court allowed the Commonwealth to file an answer that day, and stated that the motion would be decided after the submission of briefs. The case proceeded to trial and appellant was found guilty of burglary, larceny, and conspiracy by a jury.
Appellant filed only boilerplate post-trial motions, but requested leave to file additional reasons upon transcription of the notes of testimony. Although no further motions appear in the record, appellant submitted a brief in support of his motions which raised all the issues presently pursued. The lower court's Memorandum Opinion states that "[m]otions for a new trial and in arrest of judgment were duly filed, submitted on briefs, and . . . denied." Appellant's arguments, therefore, are properly preserved for our review.*fn1
Appellant's first contention is that he was deprived of his constitutional right to a speedy trial. Because the criminal complaint was filed before June 30, 1973, Rule 1100, Pa.R.Crim.P., is inapplicable. Therefore, appellant's argument must be judged against the constitutional requirements announced in Barker v. Wingo, 407 U.S. 514 (1972); and Commonwealth v. Hamilton, 449 Pa. 297,
[ 239 Pa. Super. Page 431297]
A.2d 127 (1972). The factors to be balanced in determining whether a particular defendant's right to a speedy trial has been denied are: the length of the delay; the reason for the delay; the defendant's assertion of his right; and the prejudice to the defendant. In the instant case, two of the factors clearly support appellant's contention -- the delay was excessive and the Commonwealth has failed to assert any reason for the delay. On the other hand, appellant did not assert his constitutional right until three days prior to the trial. Furthermore, appellant has not demonstrated that he has suffered prejudice as a result of the delay. First, appellant was sentenced on April 4, 1972, to serve a term of imprisonment of two to ten years on a separate charge; second, appellant has not alleged that the delay precluded his production of exculpatory evidence; third, appellant cannot allege a loss of memory in view of his detailed ...