Daniel H. Greene, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Manderino, J., joined. Pomeroy, J., filed a concurring opinion. Nix, J., filed a dissenting opinion in which Eagen, J., joins.
Appellant, James Myers, was arrested on January 24, 1969 and charged with three others, in the robbery-murder of Charles Ben-Ami. On August 7, 1974, he
was found guilty by a jury of murder in the first degree and aggravated robbery. After denial of his post-trial motions, appellant was sentenced to life imprisonment on the murder conviction and to a concurrent ten to twenty year term on the robbery one. These appeals followed.*fn1
The first of appellant's arguments for our consideration is that he was denied a speedy trial in violation of the United States and Pennsylvania Constitutions.*fn2 Appellant was arrested on January 24, 1969, and indicted on June 11, 1969. Trial was not convened until July 25, 1974, over five and one-half years since his arrest. Appellant was incarcerated for four and one-half years of that period.*fn3
It is argued first, that we should dismiss the indictments*fn4 for a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure.*fn5 However, that Rule is inapplicable to the instant case because this case began prior to the effective dates in that Rule. Commonwealth v. Lee, 460 Pa. 374, 379 n. 2, 333 A.2d 773, 776 n. 2 (1975); Commonwealth v. Hamilton, 449 Pa. 297, 308-09, 297 A.2d 127, 132-133 (1972); see Commonwealth v. Woods, 461 Pa. 255, 257, 336 A.2d 273, 274 (1975).
In the absence of a claim based upon Rule 1100, the instant facts are controlled by the analysis set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case, the United States Supreme Court delineated four factors to be considered in an examination of a speedy trial violation claim. Those factors to be considered are: the length of the delay; the reason for the delay; the defendant's assertion of his right; and the prejudice to the defendant. This Court has applied this analysis several times previously. See, e. g., Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Hamilton, supra.
The length of the delay is not, per se, determinative. Barker, supra 407 U.S. at 533, 92 S.Ct. 2182. Extensive delay is the triggering mechanism which raises a presumption of a speedy trial violation, thus necessitating an inquiry into the remaining factors. Barker, Page 207} supra at 530, 92 S.Ct. 2182; Roundtree, supra at 250, 364 A.2d at 1364; Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974). Undoubtedly, the five and one-half year delay in the instant case raises this presumption and, indeed, the Commonwealth concedes as much in its brief. Despite this extraordinary delay, we conclude, upon balancing the other factors involved, that there was no denial of the speedy trial rights of appellant.
We first examine the reason for the delay in this case. In discussing this factor, the United States Supreme Court stated:
"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay."
Barker, supra at 531, 92 S.Ct. at 3192.
Although appellant was arrested in January 1969, and indicted in June of that year, his trial was not listed until February 9, 1970. This period, up until the first listing, is the only unexplained delay in this case. However, from this first listing until October 1971, there were several continuances which the court below found were caused by appellant's counsel's unavailability for trial. The court placed the burden for this delay solely upon appellant and his counsel and the record supports that conclusion.
There are two other time periods which we cannot consider to be unjustified delay. The first started in February 1972, when a hearing was held on a motion to suppress appellant's allegedly involuntary statement. This motion was eventually denied in November 1972. The second period began in August 1973. Appellant's newly appointed counsel filed a motion to quash the indictments on grounds of a speedy trial violation. The denial of that motion was appealed to this Court and, on July 3, 1974, we ruled that appeal was interlocutory and ordered a trial forthwith. Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974).
These periods, nine months for resolution of the motion to suppress and eleven months for appeal of the motion to quash, cannot be labeled unjustified delay. As Mr. Justice Roberts stated previously for the Court:
"We believe that a reasonable amount of time consumed by the disposition of motions and interlocutory appeals not made for purposes of delay, regardless of who is the moving party, is justifiable delay."
Commonwealth v. Ware, 459 Pa. 334, 347, 329 A.2d 258, 264-65 (1974). In view of the fact that the pre-trial motions and interlocutory appeals in Ware consumed thirty-three months Id., the instant periods are not unreasonable. Furthermore, there was evidence in the record that part of the delay in the suppression decision ...