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COMMONWEALTH PENNSYLVANIA v. DONALD F. DOWD (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD F. DOWD, APPELLANT



COUNSEL

Colie B. Chappelle, 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. Eagen, J., concurs in the result. Roberts, J., files a Dissenting Opinion. Manderino, J., files a Dissenting Opinion in which Nix, J., joins.

Author: O'brien

[ 472 Pa. Page 298]

OPINION OF THE COURT

Appellant, Donald Dowd, was tried by a judge and jury and found guilty of murder in the first degree and conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment on the first-degree murder conviction and received a suspended sentence on the conspiracy conviction. This court on March 12, 1975, granted appellant the right to appeal nunc pro tunc.

Appellant first argues that the charges against him should have been dismissed for want of a speedy trial. We do not agree.

Our analysis of whether appellant was denied his constitutional right to a speedy trial must be conducted within the framework of the four-prong balancing test

[ 472 Pa. Page 299]

    established by the United States Supreme Court's decision in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),*fn1 where the Court identified the four factors as: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

(a) Length of Delay

The length of delay is the "trigger mechanism" which must be considered first. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, supra, at 530, 92 S.Ct. at 2192.

The murder for which appellant stands convicted occurred on November 22, 1970, in the City of Philadelphia. Appellant fled the Philadelphia area and was apprehended on November 28, 1970, in Atlanta, Georgia. He was then indicted as a fugitive on December 16, 1970, and after an extradition contest he was returned to Philadelphia on February 6, 1971. On September 17, 1973, appellant was tried and convicted of murder in the first degree and conspiracy, some thirty-one months after his extradition to Pennsylvania.

Initially, we must point out that since appellant sought to contest his extradition into Pennsylvania, the time for determining the delay period of his trial would not start to run until February, 1971, when appellant was within the jurisdiction of Pennsylvania and available for trial, thus making the period of his delay in trial from February, 1971 until September, 1973, when the trial actually began. A thirty-one-month delay is presumptively prejudicial and requires an analysis of the remaining three factors. See Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974).

[ 472 Pa. Page 300]

During the period from February, 1971 until May, 1973, appellant was represented by private counsel. During this twenty-seven month period, appellant's private counsel took no affirmative action to hasten appellant's trial and appellant does not contend otherwise. The thrust of appellant's argument is that the pro se petition for habeas corpus filed by him in March of 1972 and referred for action by the district attorney's office to Cecil Moore, constitutes a demand for immediate trial. Appellant argues it was incumbent upon the Commonwealth to list his case for trial, regardless of the dilatory actions of Cecil Moore. We do not agree.

In Commonwealth v. Williams, supra, this court was presented with a situation in which a defendant alleged a speedy trial violation occasioned by the non-action of his court-appointed counsel, Cecil Moore. In Williams, we found that the delay caused by Mr. Moore should not be held against the defendant because Mr. Moore was appointed by the court and that the Court of Common Pleas of Philadelphia had an affirmative duty not to appoint a lawyer whose trial schedule on its face would necessarily occasion a delay in the speedy trial of a criminal defendant.

In the instant case we are not faced with court-appointed counsel, but rather with Mr. Moore being privately retained by appellant while he was in Atlanta, Georgia, fighting extradition to Pennsylvania. Appellant sought the services of Mr. Moore early in his legal battle and saw fit to be satisfied with Mr. Moore's representation until April of 1973. While appellant in the instant appeal places great weight on his demand for trial in his pro se petition filed in March of 1972, he does not argue that he wished to change counsel before April of 1973 -- some twenty-six months after his return to Pennsylvania.

We are not persuaded that it was incumbent upon the district attorney or the Court of Common Pleas of Philadelphia

[ 472 Pa. Page 302]

    to act on the pro se petition filed by appellant in March of 1972. The petition was referred to Cecil Moore for action and none was taken. It would have been unethical for the district attorney to have spoken with appellant in March of 1972, and to have advised him to dismiss Mr. Moore in order to bring his case to an earlier trial. Moreover, at the time appellant was represented by Cecil Moore, Mr. Moore and the Court of Common Pleas of Philadelphia were involved in a lawsuit as to whether Mr. Moore could be barred from representing criminal defendants who privately retained him because of his huge backlog of cases. See Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973).

It is clear from the record that the delay in bringing appellant's case to trial was attributable in large measure to appellant's privately retained defense counsel; this factor weighs heavily against appellant's speedy trial claim.

(c) Defendant's Assertion of His Right

"Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker v. Wingo, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192-2193.

In the instant case, appellant was returned to Pennsylvania in February, 1971. He did not demand his right to a speedy trial until March 16, 1972 -- more than a year

[ 472 Pa. Page 303]

    after his extradition from Georgia. Moreover, he was contented with the representation by his privately retained counsel until April, 1973 -- over two years after his extradition -- at ...


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