Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia County, at Nos. 306 and 307, May Term, 1971. No. 1310 October Term, 1975.
Warren R. Hamilton (Court Appointed), Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, President Judge, files a dissenting opinion in which Cercone, J., joins. Hoffman, J., files a dissenting opinion.
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The defendant-appellant Tyrone Griffin was arrested on March 28, 1971, on charges of rape, aggravated robbery, and burglary. His first trial began on June 6, 1974, and ended in a mistrial when the jury was unable to reach a verdict. Appellant's second trial began on February 11, 1975. At the conclusion of the second trial, the jury reached a verdict of guilty on the charges of aggravated robbery and burglary and not guilty on the charge of rape. We affirm the judgment of sentence of the lower court.
Appellant first contends that his right to a speedy trial was violated. Well over three years elapsed from the arrest to the time of appellant's first trial. The parties stipulated in the court below that this time may be broken down as follows: ninety-one weeks of delay were caused by appellant's privately retained counsel's failure to appear; forty-two weeks were caused by the unavailability of a courtroom; thirty-nine weeks were caused by the Commonwealth's failure to have witnesses available; and one week was caused by appellant's hospitalization. The lower court judge, Judge William Porter of the Court of Common Pleas of Philadelphia County, noted in his opinion that:
"While the handling of this case both by prosecution and defense was not a model of criminal justice, I did not find it a deprivation of speedy trial."
We agree. This case arose prior to the effective date of Pa.R.Crim.P. 1100. Applying the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it is evident that appellant's right to a speedy trial was not violated.
First, most of the delay was caused by appellant's counsel. Second, the fact that appellant did not file his motion to quash until two and one-half years after the arrest indicates that appellant acceded to the delay. Finally,
[ 243 Pa. Super. Page 118]
appellant has shown no specific prejudice that can be attributed to the delay.
The second and third issues raised by appellant are interrelated. At appellant's first trial, the victim-complainant testified against him. In the interval between the first trial and the second, the complainant moved to California, and, despite requests from the district attorney's office, she declined to return for the second trial. The district attorney's office also complied in all respects with the procedure provided in the "Uniform Act to Secure the Attendance of Witnesses From Within or Without a State in Criminal Proceedings," Act of June 23, 1941, P.L. 147, § 1 (19 P.S. § 622.1) et seq., and West's Ann.Penal Code § 1334 et seq. However, a California court, on motion of the complainant, quashed the request, finding that further testimony in the matter would be "detrimental to her health."
Unable to secure the presence of the complainant at the second trial, the Commonwealth read her testimony that had been given at the first trial. Appellant contends that this procedure violated the hearsay rule, and, in the alternative, violated his sixth amendment right to confront the witnesses against him.
The Act of May 23, 1887, P.L. 158, § 3 (19 P.S. § 582), provides:
"Whenever any person has been examined as a witness, either for the commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards die, or be out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall
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be competent evidence upon a subsequent trial of the same criminal issue . . . ."
It is clear that if the Commonwealth's use of the complainant's prior testimony was proper under the statute, then the evidence was not inadmissible hearsay nor did it violate the appellant's Sixth Amendment right. In order for the Commonwealth to take advantage of the statute, the Commonwealth must show that the witness was unavailable and that a good faith effort was made to obtain the witness' presence. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Commonwealth v. Jackson, 463 Pa. 301, ...