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decided: October 20, 1976.



Marshall E. Kresman, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 469 Pa. Page 246]


This is an appeal from the denial of a petition for relief under the Post Conviction Hearing Act (PCHA).*fn1 Appellant, William Roundtree, was convicted in a non-jury trial on February 28, 1973, of murder in the second degree for the stabbing death of one Nathaniel Davis. The murder occurred on November 10, 1966, and appellant was arrested at the scene. A preliminary hearing was held later in November 1966 and in December 1966 appellant was indicted for murder.

No action was taken in the case until 1970, when it was listed for trial but then continued. There was no further action in the case until the fall of 1972, when the appellant was arrested on an unrelated charge. A routine records check revealed the pending homicide charge. The case was finally brought to trial on February 26, 1973, more than six years from the date of the killing. The inordinate delay was the result of the admitted negligence of the Commonwealth in losing the Quarter Session file and the unexplained placing of William Roundtree's indictment on the deferred indictment list for a portion of the six-year period.

[ 469 Pa. Page 247]

On direct appeal in this case,*fn2 decided in 1974, the sole issue raised was whether appellant was denied his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. This Court, at that time, did not find it necessary to reach the merits of appellant's argument since we concluded that appellant had waived his right to a speedy trial.*fn3

The threshold question*fn4 in this appeal is whether appellant failed to receive effective assistance of trial counsel during his trial for the murder of Nathaniel

[ 469 Pa. Page 248]

Davis.*fn5 It is the failure of trial counsel to timely raise the speedy trial claim which is the crux of the present contention of ineffective counsel.

"The right to representation by counsel to be meaningful necessarily includes the right to effective representation." Commonwealth v. Wideman, 453 Pa. 119, 123, 306 A.2d 894, 896 (1973). There is, however, a presumption that counsel's representation was competent, Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and it is an accepted principle within our criminal justice system "that certain decisions during trial are within the exclusive province of counsel." Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). In cases of this nature we are required to make an independent review of the entire record and an examination of counsel's "stewardship" of the now challenged proceedings in view of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967). In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 325 A.2d 344, 352-53 (1967), the test to be employed in determining whether counsel was effective was set forth:

". . . our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives

[ 469 Pa. Page 249]

    were more reasonable, employing a hindsight evaluation of the record."

It follows, that if an independent examination of the record reveals a reasonable basis for the strategy employed by counsel,*fn6 that strategy is imputed to the appellant.*fn7 Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608 (1973). The Court will not substitute its determination for that of counsel as to what course of action would have been more effective in promoting the client's interest. Rather, the only inquiry is whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered as advancing and protecting the appellant's interest. See Commonwealth v. Hill, 450 Pa. 477, 482, 301 A.2d 587, 590 (1973). As we have acknowledged before, our primary concern is whether the accused's rights have been adequately protected. Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973).

In the instant case the inordinate delay itself should have been sufficient to trigger in the attorney's mind that there existed a reasonable basis for pursuing a motion to quash the indictment on the ground that the

[ 469 Pa. Page 250]

    accused's right to a speedy trial had been violated. See Commonwealth v. Roundtree, 458 Pa. 351, 356, 326 A.2d 285, 287 (1974). Contrary to the position articulated by the Commonwealth, that the decision not to raise the speedy trial issue was a calculated trial tactic by counsel, it clearly appears that the failure to pursue the speedy trial claim was not a deliberate "informed choice" employed to advance the client's interest. Instead, the failure to assert the speedy trial claim apparently resulted from either oversight or lack of preparation.*fn8 Such an explanation is totally unacceptable for establishing a "reasonable basis" for counsel's failure to argue the speedy trial claim. Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974). Indeed, it would be difficult to construct an argument which would bolster the position of the Commonwealth, that the failure to raise the issue of denial of speedy trial under the circumstances of

[ 469 Pa. Page 251]

    this case had any strategic foundation. Certainly counsel could have presented a pre-trial motion to quash the indictment on the theory of the speedy trial violation without jeopardizing either the success of his client's potential defenses or his chance of acquittal due to the Commonwealth's failure to present a case. Cf. Commonwealth v. Bronson, 457 Pa. 66, 321 A.2d 645 (1974); Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973).

We, therefore, agree with appellant that counsel's failure to raise a pre-trial motion asserting appellant's speedy trial claim lacked any reasonable strategic basis and that, as a result, appellant was deprived of the effective assistance of counsel.

Having ascertained that appellant was deprived effective counsel with respect to the assertion of his right to speedy trial, we are confronted with the more burdensome question of whether appellant was actually denied his right to speedy trial.*fn9 We conclude, that for the reasons discussed below, the more than six-year delay between arrest and trial denied appellant his right to speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. Therefore, we reverse the judgment of sentence and dismiss the indictment.*fn10

[ 469 Pa. Page 252]

The right to speedy trial is "one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967); Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974); Commonwealth v. Clark, 443 Pa. 318, 279 A.2d 41 (1971). In determining whether there has been a violation of an accused's constitutional right to a speedy trial, each case requires an analysis of the circumstances and consideration of the rights of society, as well as those of the accused, which are to be protected. Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court identified four factors which are to be considered in reaching the determination of a claimed speedy trial violation: length of the delay, reason for the delay, defendant's assertion of his right and the prejudice which inures to the defendant. The length of the delay can be considered the "triggering mechanism." Extensive delay raises a presumption of a speedy trial violation, thus necessitating an inquiry into the remaining three factors. Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 17 (1974). Cf. Commonwealth v. Gant, 213 Pa. Super. 427, 431, 249 A.2d 845, 847 (1968).

[ 469 Pa. Page 253]

In the instant case, there was a six-year delay which was primarily attributable to the Commonwealth. Although not intentional, nor calculated to strengthen its case against the appellant, the delay cannot be dismissed merely as the product of an over-burdened system. Since the delay is not attributable to the affirmative action of the defendant, the ultimate responsibility for such delay, which is the product of either negligence or inefficiency, must rest with the government rather than with the appellant. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also Strunk v. Page 253} United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring). Such an unjustified delay undoubtedly raises the presumption that there was an encroachment upon appellant's right to a speedy trial. Commonwealth v. Hamilton, 449 Pa. 297, 299, 297 A.2d 127 (1972).

The Commonwealth, however, contends that the appellant, because he deemed it to his advantage, acquiesced in the delay by not requesting a speedy trial. The thrust of the Commonwealth's argument is based on the "demand -- waiver" rule, i. e., that a defendant waives any consideration of his right to speedy trial for any period prior to which he has requested to be tried. But as the United States Supreme Court noted in Barker, supra, such an approach is inconsistent with established constitutional principles. Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Even prior to Barker, this Court acknowledged the weakness of the demand -- waiver rule in Commonwealth v. Clark, 443 Pa. 318, 326, 279 A.2d 41, 46 (1971):

". . . the necessity of a demand for trial as a prerequisite to the successful assertion of a speedy trial claim . . . is highly suspect."*fn11

The Commonwealth cannot place the burden on the accused to bring himself to trial. That obligation is the sole responsibility of the Commonwealth. Here, however, there is an additional factor which defeats the Commonwealth's argument. Appellant was without counsel from the spring of 1967 until October 1972. Certainly his uncounselled "acquiescence" in the Commonwealth's failure to bring him to trial during the six-year interim between arrest and trial cannot be attributed as a strategic maneuver. Accordingly, we find no merit in the Commonwealth's assertion that the accused

[ 469 Pa. Page 254]

    cannot claim a violation of his speedy trial right simply because he failed to demand a trial during the six-year period in question.

The Commonwealth further contends that the accused's right to speedy trial has not been violated because he has failed to affirmatively establish that he has been prejudiced by the delay. We disagree. Prejudice must be assessed with a view toward the interests of defendant which the right to speedy trial was intended to protect. In United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), the United States Supreme Court enumerated three particular interests which must be considered: (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Of course, the most crucial of these is the latter since it directly affects the fairness of the trial which the defendant will receive. In reference to the possibility of impairment of the accused's defense due to a speedy trial violation, the United States Supreme Court in Barker stated:

"If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (Emphasis added).

Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972). See Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973).

Here, the length of the delay*fn12 during which appellant was without counsel, the fact that an eyewitness had died since 1966, and that crucial records had

[ 469 Pa. Page 255]

    been discarded due to the passage of time*fn13 undoubtedly operated to the detriment of the appellant's defense. A thorough review of the record in this case permits no other conclusion but that appellant was indeed prejudiced by the unnecessary delay in bringing him to trial. See Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).

After balancing the factors delineated in Barker, we conclude that the excessive pre-trial delay constituted a violation of the appellant's constitutional right to speedy trial. See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). The judgment of sentence is reversed and the appellant discharged.

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