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decided: January 28, 1977.



Eugene A. Spector, Philadelphia, for appellant.

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

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., joins Part I and Part III. Manderino, J., concurs in the result in Part I and Part II and joins Part III. Pomeroy, J., filed a dissenting opinion in which Jones, C. J. and Eagen, J., joined.

Author: Nix

[ 470 Pa. Page 492]


Appellant, Albert Hailey, was arrested on May 31, 1973, shortly after the shooting of two youths in the vicinity of 30th and Oakdale Streets, Philadelphia, during a gang-related incident. Melvin Wilcox, Jr., was shot twice through the heart and died as a result of these wounds. The other injured youth, Norman Dugan, was shot in the back and shoulder. Although Dugan fortunately recovered, he nonetheless sustained some paralysis as a result of the injury. Hailey was indicted and tried as a participant in this incident and a verdict of guilty of murder of the first degree was returned by the jury. He was also convicted of assault with the intent to kill for the shooting of Dugan. After disposition of post-verdict motions, a sentence of life imprisonment was imposed under the murder indictment. Sentence was suspended on the assault indictment. This direct appeal followed.*fn1

It is our judgment, after careful consideration of the record, briefs and arguments presented in this cause, that a new trial must be awarded. However, since appellant also asserts that he is entitled to have one or both of the instant indictments dismissed and that the appropriate remedy is his discharge, we will consider these questions before reaching a discussion of the grounds upon which a new trial is now being awarded.


It is asserted by appellant that the indictments against him must be dismissed because of a violation of

[ 470 Pa. Page 493]

    the speedy trial rights accorded him under the Federal and State Constitutions.*fn2 Specifically, he states that the expiration of 271 days between his arrest and the commencement of trial, being in excess of the 270-day maximum limit provided under Section (a)(1) of Rule 1100, requires the granting of the requested relief. While ostensibly conceding the inapplicability of Rule 1100, which was not in effect at the time of the filing of the complaint in the instant action,*fn3 appellant ingeniously argues that our decision in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), which first announced our intention to promulgate a presumptive rule, was in fact an expression of the requirements of the Pennsylvania Constitution at the time of that decision. This proposition is clearly erroneous. Prior to the adoption of Rule 1100 (June 8, 1973), this Court consistently examined speedy trial claims, whether asserted under the Sixth and Fourteenth Amendments to the United States Constitution or under Article I, Section 9 of the Pennsylvania Constitution, in accordance with the formulation articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116 (1972).

The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States

[ 470 Pa. Page 494]

Constitution and Article I, Section 9 of the Pennsylvania Constitution, P.S. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court of the United States enumerated four factors which are to be balanced in determining whether an accused has been denied his right to a speedy trial: "Length of delay, reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. This Court has assiduously followed these guidelines. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974); Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). (Footnote omitted). Commonwealth v. Lee, 460 Pa. 374, 379, 333 A.2d 773, 776 (1975).

There can be no question that in this Commonwealth after the United States Supreme Court's decision in Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the federal and state speedy trial protections were considered as being co-extensive and that a claimed violation of either or both would be assessed based upon the Barker v. Wingo, supra formulation. Although our decision in Commonwealth v. Hamilton, supra, indicated our intention of promulgating a presumptive rule for this jurisdiction, that did not in fact come to pass until the adoption of Rule 1100. In Hamilton, supra, although we discussed the advisability of providing additional protection to those accused of crime in this Commonwealth, we nonetheless considered the claim therein presented in view of the Barker v. Wingo, supra test. See generally, Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). It was made clear in the opinion in Hamilton, supra, under the

[ 470 Pa. Page 495]

    language of Rule 1100 and in a number of subsequent decisions that these additional safeguards were to be applied only prospectively. Commonwealth v. Bailey, 463 Pa. 354, 361, 334 A.2d 869, 873, n. 6 (1975); Commonwealth v. Lee, supra, n. 2. Most recently in Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (filed October 8, 1976), this Court again stressed the prospective application of the mandates of Rule 1100. In rejecting a claim that Section (e) of Rule 1100 had retroactive application, we stated:

"Appellant argues that the prospective application of Rule 1100 is applicable only to original trials and does not apply to paragraph (e) which pertains to retrials. This argument is premised upon the fact that paragraphs (a)(1) and (a)(2) of the Rule expressly set forth the effective dates of their operation and paragraph (e) fails to contain such a declaration. The argument fails however to recognize the clear intention that the entire Rule was only to be given prospective application. The accompanying explanatory note and the comment to the Rule both expressly provide that the provisions of the Rule should be effective prospectively from the date of the adoption of the Rule, June 8, 1973. See, also, Commonwealth v. Bailey, 463 Pa. 354, 361, n. 6, 344 A.2d 869, 873, n. 6 (1975); Commonwealth v. Lee, 460 Pa. 374, 379, n. 2, 333 A.2d 773, 776, n. 2 (1975); Commonwealth v. Roundtree, 458 Pa. 351, 355, n. 6, 326 A.2d 285, 287, n. 6 (1974)." (Emphasis added).

Id. at , 368 A.2d at 628-629.

Thus, the provisions of Rule 1100, including the application of the presumptive time limit in which a defendant must be tried, were not the law of this Commonwealth under the Pennsylvania Constitution at the time Hamilton, supra was decided, nor can it be considered as being operative to the instant factual situation.

[ 470 Pa. Page 496]

Since appellant has argued in the alternative that he is entitled to relief under the Barker test, a short review of the relevant facts is necessary at this juncture.

On June 4, 1973, four days after his arrest, appellant was arraigned on charges that he had committed murder, assault with intent to kill and other offenses. On that same day a juvenile petition was filed charging these same offenses, neglecting, however, to name specifically the victim of the assault with intent to kill, Norman Dugan. After a hearing held on June 15, 1973, the Juvenile Court certified the cause to the Court of Common Pleas for trial. Indictments were thereafter returned at the July 1973 Term of the Court of Common Pleas charging appellant with offenses relating to both victims, Dugan and the deceased Wilcox. In September of 1973, on motion of appellant, a three-day pre-trial suppression hearing was conducted to determine the admissibility of certain written and oral statements of appellant. The request was denied and on October 9, 1973, the matter was marked ready for trial. A date of January 29, 1974, was assigned for trial; however, on that date the case, with the acquiescence of the defendant, was continued, presumably due to the unavailability of a courtroom. The trial was rescheduled for February 26, 1974, and on that date, did in fact begin. Meanwhile, on January 31, 1974, appellant filed a motion challenging the July indictments relating to the shooting of Norman Dugan on the grounds that these matters were never properly certified to the Criminal Division of the Court of Common Pleas. On the same day the Commonwealth filed a new juvenile petition charging Hailey with the crimes relating to the wounding of Dugan. A certification hearing was held on that petition on February 5, 1974, and the matter was certified to the Criminal Division. Thereafter, the February Term, 1974 Grand Jury returned a second set of indictments alleging appellant had committed crimes against Norman Dugan. On February 25, 1974, appellant

[ 470 Pa. Page 497]

    filed a motion to quash the newly-returned indictments on the basis of a violation of Rules 316(a) and 140(f) of the Pennsylvania Rules of Criminal Procedure. On February 26, 1974, appellant was called to trial on both the July 1973 and February 1974 indictments. On March 4, 1974, the trial judge granted appellant's motion to quash the July Dugan indictments, but denied the motion to quash the February Dugan indictments. The Commonwealth proceeded to trial on the July Wilcox indictments and the February Dugan indictments.

In Commonwealth v. Pearson, 450 Pa. 467, 472, 303 A.2d 481, 483 (1973), we described the sensitive balancing test that is required when weighing the significance of the four elements of the Barker test:

"In determining if the constitutional right to a speedy trial has been violated, each case requires an analysis of the circumstances and a consideration of the rights of society, as well as those of the accused to be protected from undue ...

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