(3d Cir. 1971) (exhaustion of "direct appellate remedies" obviates resort to PCHA). Because the court finds that the Pennsylvania courts have had an opportunity to correct the allegations of error, petitioner has exhausted his state remedies. Therefore, the court must proceed to an examination of the merits of petitioner's claims.
II. Petitioner's Allegations of Error
A. Timeliness of the Hearings
In the first two grounds advanced by petitioner, he argues that his preliminary hearing and ultimate jury trial were untimely. In the case of his preliminary hearing, the petitioner alleges a violation of Pa.R.Crim.P. 140(d) (1) which requires that the preliminary hearing follow preliminary arraignment by a period more than three days but less than ten days. The rule, of course, permits extension for cause shown. Furthermore, Rule 142 permits continuances but adds a requirement of noting such continuances on the docket together with the reasons for granting the continuance. Petitioner alleged that the arraigning magistrate set a date for preliminary hearing,
and that the preliminary hearing occurred some three months after preliminary arraignment without compliance with either Pa.R.Crim.P. 140(d)(1) or 142.
Pa.R.Crim.P. 1100, on the other hand, requires commencement of trial within 180 days of the filing of the complaint unless the time is extended at Commonwealth request. The rule also excludes time from the 180 day calculation under circumstances not relevant here. Again petitioner alleges that the 180 day period had long expired before his trial commenced.
For each of these timeliness claims the parties have briefed Pennsylvania law thoroughly. This energy, however, has been misdirected. Even if petitioner had suffered from an error of Pennsylvania law, such an error forms no basis for habeas corpus relief unless it results in custody violating the Constitution, law or treaties of the United States. Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177, 46 L. Ed. 2d 162 (1975); United States ex rel. Hayward v. Johnson, 508 F.2d 322 (3d Cir. 1975). In rare circumstances, a state trial error may vitiate the fairness of a trial, or constitute deprivation of due process. United States ex rel. Choice v. Brierley, 460 F.2d 68, 70-71 (3d Cir. 1972). United States ex rel. Cannon v. Maroney, 373 F.2d 908, 910 (3d Cir. 1967). Petitioner raises no such error in his timeliness claims. Unless the alleged defects in the Pennsylvania proceeding amount to deprivation of the Sixth Amendment right to a speedy trial, this court may grant no relief.
See United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir. 1973) (notwithstanding prisoner allegations of violation of state's speedy trial statute, federal court may consider only violation of federal constitutional right to speedy trial).
Without a strong showing of prejudice, the length of delay between arrest and the probable cause hearing forms no independent basis for a Sixth Amendment claim. See United States ex rel. Williams v. Russell, 264 F. Supp. 505, 505-06 (E.D.Pa.1967). The delay alleged between arraignment and the preliminary hearing may be considered as part of the overall delay in bringing petitioner to trial because arrest triggers the Sixth Amendment speedy trial protection. Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). The court, therefore, finds that petitioner's first contention lacks merit. The court will, however, consider whether a speedy trial claim exists on the basis of the entire delay between arrest and trial.
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) provides the starting point for any analysis of a speedy trial claim. Barker mandates striking a balance among several factors: the length of the delay, the reasons for the delay, defendant's assertion of the right, and prejudice to the defendant. Id. at 530, 92 S. Ct. at 2191. Of these factors, the length of delay constitutes a threshold inquiry; without a delay which is "presumptively prejudicial" in the "peculiar circumstances" of the case, other factors need not be weighed. Id. at 530-31, 92 S. Ct. at 2191-92.
The court is satisfied that petitioner has passed this threshold inquiry. Although courts have postulated various delays as sufficient to trigger the balancing process, see, e.g., United States v. Parker, 586 F.2d 422, 430 (10th Cir. 1978) (five-month delay fails to trigger balance test); United States v. West, 164 U.S. App. D.C. 184, 504 F.2d 253, 256 (D.C.Cir.1974) (six-month delay triggers speedy trial), this court will eschew any attempt to quantify the minimum period which will trigger the inquiry. Rather, the court finds that an eleven-month delay in the circumstances of this case triggers review under the Barker test; the Commonwealth's case presented simple issues and was proven primarily through eyewitness testimony. See United States v. Simmons, 536 F.2d 827, 831 & nn. 12 & 13 (5th Cir. 1976).
In considering the reasons for the delay, the second Barker factor, the court notes that the delay is attributable to several causes. As the Magistrate had indicated, one of the Commonwealth's witnesses remained unavailable for a period of at least two months due to injuries sustained in the assault with which the petitioner was charged. See Transcript of testimony taken on September 22, 1975, at 37. Although petitioner's brief argues that the witness's condition did not cause the delay because the attending physician never informed the Magistrate of the witness's unavailability, the record does not bear out that contention. The witness, Joseph Gormont, testified that he informed the Magistrate of his condition. Thus, at least two months of the delay is not attributable to the Commonwealth.
A second period of delay occurred at the original trial date set for October 27, 1975. Petitioner's attorney had filed a variety of pretrial motions two days earlier, causing the further delay of the trial. See Transcript of October 27, 1975, at 1-2. Oral argument on the defense motions was set for December 8, 1975 and the trial itself was continued until the January term. Thus, even assuming that the delay from October 27, 1975 until the trial date of January 19, 1976 was longer than necessary, some portion of that delay is clearly attributable to efforts by counsel for petitioner.
Having determined that substantial portions of the delay arose from the acts of the petitioner, any deliberate delay calculated to harass seems absent under the present circumstances. See Barker v. Wingo, 407 U.S. at 531 & n.32, 92 S. Ct. at 2192 & n.32. Moreover, this circuit has indicated that delays caused by defense "maneuvering" cannot form the basis of a claim of denial of the right to a speedy trial. United States v. Taylor, 469 F.2d 284, 285 (3d Cir. 1972). While the record does not necessarily indicate that motions filed on petitioner's behalf constituted maneuvering or an invitation to error, the record does indicate that the Commonwealth stood ready to go to trial almost three months earlier than the actual trial date but for the defense motions. See Transcript of October 27, 1975 at 2 (indicating that the Commonwealth had brought witnesses for trial on October 27).
The third Barker factor, timely assertion of the right, weighs in petitioner's favor. Petitioner asserted his rights at every available opportunity. The initial delay in bringing petitioner to a preliminary hearing brought early protest from petitioner. See Transcript of September 22, at 73-74. Immediately after the passage of 180 days by petitioner's calculation, his counsel pressed the speedy trial claim. See Defendant's motion to quash of September 4, 1980; Transcript of September 22, at 73-74.
Finally, Barker requires the court to consider the extent of prejudice to petitioner. 407 U.S. at 532, 92 S. Ct. at 2193. Barker identified three types of prejudice: oppressive pretrial incarceration, anxiety of the accused, and impairment of the defense. Id. Petitioner alleges no prejudice of any form. Moreover, the record does not indicate that petitioner could substantiate such an allegation if he made it.
The record indicates that petitioner was already incarcerated at the time that the offenses were committed. Apparently, this incarceration related to a 1973 robbery charge referred to in the trial transcript. Trial Transcript at 240. While this court, under some circumstances would have this record expanded to determine whether petitioner's incarceration would have extended through the entire period, such expansion of the record is unnecessary. Because the length of the pretrial delay is not excessive and because much of that delay is attributable to petitioner's own actions, the fact of pretrial incarceration would not weigh heavily in petitioner's favor. Therefore, the petitioner's request for a writ of habeas corpus is denied with respect to the speedy trial claim.
B. The Jury Charge
At his trial, the petitioner did not testify, relying for his defense solely on the testimony of his co-defendant, John Noyer. During the charge to the jury, the trial judge inserted an "accomplice charge" concerning Mr. Noyer's testimony.
In essence, the charge instructed the jury to regard the testimony of Mr. Noyer with disfavor if the jury found that Mr. Noyer was an accomplice of the petitioner. Petitioner alleges that the charge destroyed the credibility of his sole witness thus denying him a fundamentally fair trial.
Again, the parties have briefed Pennsylvania law exclusively. Petitioner cites several authorities which appear to establish that giving the instruction constituted an error of Pennsylvania law. See generally Commonwealth v. Jones, 490 Pa. 599, 417 A.2d 201, 202-03 (1980); Commonwealth v. Russell, 477 Pa. 147, 153, 383 A.2d 866, 868-69 (1978). This court, however, cannot usurp the functions of Pennsylvania appellate courts. Unless the instruction "so infected the entire trial that the resulting conviction violates due process", Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973), or violates a specific constitutional guarantee, the error falls outside the scope of review in a habeas corpus petition.
Taking the first of these alternative possibilities, employing an accomplice instruction in these circumstances is unwise. A few courts have criticized application of the instruction to circumstances in which the accomplice offers exculpatory evidence. As expressed by the Pennsylvania Supreme Court considering this matter:
Legitimate basis exists for charging the jury to view an accomplice's testimony with suspicion when the accomplice testifies for the Commonwealth. Such a witness, out of the reasonable expectation of leniency, has an interest in inculpating others. This basis is inapplicable, however, when the accomplice testifies on behalf of the defense. One implicated in a crime cannot reasonably expect such leniency by exonerating others.
Commonwealth v. Russell, 477 Pa. at 153, 383 A.2d at 868.
Even if such an instruction received universal condemnation, however, this would not suffice to change the error to one of constitutional magnitude. Cupp v. Naughten, 414 U.S. at 146, 94 S. Ct. at 400. Moreover, employing an accomplice charge when the accomplice offers exculpatory evidence has survived constitutional attack in other circuits. United States v. Stulga, 584 F.2d 142, 144-45 (6th Cir. 1978); United States v. Nolte, 440 F.2d 1124, 1126-27 (5th Cir. 1971). The court therefore declines to find use of an accomplice charge against a defense witness per se unconstitutional.
Under certain circumstances, a charge concerning accomplice testimony may rise to the level of violating a specific constitutional guarantee. Specifically, in Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972) (per curiam), the Court found that an accomplice instruction violated the Sixth Amendment right to present exculpatory evidence, id. at 104, 93 S. Ct. at 357 (citing Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1970)), and that the particular instruction impermissibly shifted the burden of proof onto the defendant. 409 U.S. at 104, 93 S. Ct. at 357. The court also found error in the instruction in that it informed the jury that a conviction was possible on the basis of the uncorroborated testimony of an accomplice without also informing the jury that an acquittal on the same basis was possible. See id. at 103 n.4, 93 S. Ct. at 356 n.4 (such an instruction is fundamentally unfair even assuming some inculpatory accomplice testimony given). Unlike the present charge, however, the instruction in Cool required that the jury must believe accomplice testimony beyond a reasonable doubt before crediting the testimony. Id. at 102, 93 S. Ct. at 356.
In United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), this circuit held that an instruction somewhat similar to the instant charge triggered the duty to inform the jury that the uncorroborated testimony of an accomplice could form the basis of a not guilty verdict.
Id. at 48 & n.26 (citing Cool v. United States, 409 U.S. 100, 103 n.4, 93 S. Ct. 354, 356 n.4, 34 L. Ed. 2d 335 (1972)). See also United States v. Brinklow, 560 F.2d 1003, 1007 (10th Cir.) (with exculpatory accomplice testimony, accomplice charge may well be inappropriate), cert. denied, 434 U.S. 1047, 98 S. Ct. 893, 54 L. Ed. 2d 798 (1977). The charge in Armocida reads:
The law is that an accomplice's testimony must be received with caution and weighed with care. The testimony of an accomplice is not to be rejected unless the jury thinks it has no weight whatsoever. Like any other testimony, it is to be taken and dealt with by the jury as any other fact is considered or any other evidence is considered.