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COMMONWEALTH PENNSYLVANIA v. THOMAS D. HENSLEY (02/12/82)

filed: February 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS D. HENSLEY, APPELLANT



No. 201 PITTSBURGH, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Fayette County at No. 548 of 1979.

COUNSEL

Alphonse P. Lepore, Jr., Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Spaeth, Hester and Shertz, JJ. Hester, J., files a dissenting statement. The decision in this case was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.

Author: Spaeth

[ 295 Pa. Super. Page 226]

This is an appeal from a judgment of sentence for criminal homicide, 18 Pa.C.S.A. ยง 2502. Appellant argues that he should be discharged because he was denied his right under

[ 295 Pa. Super. Page 227]

Rule 1100 to a speedy trial, and because "the verdict was against the evidence, the weight of the evidence and the law." In the alternative, appellant argues that he should be granted a new trial because he was not permitted to impeach an important Commonwealth witness by proving the witness's prior contradictory statements. We are not persuaded by appellant's arguments for a discharge, but we are persuaded that impeachment should have been permitted. We therefore vacate the judgment of sentence and remand for a new trial.

The charges arise from the shooting to death of two brothers, Charles and Frank Burnsworth. Appellant is married to Charles's and Frank's sister, Dora Jean. All the persons involved in the shooting live near one another in the area of Mill Run, Pennsylvania. On July 25, 1979, Dora Jean and Debra, Charles's wife, had a fight, apparently over getting water from a nearby reservoir. By the time appellant, Charles, and Frank got home that evening, they had heard about the fight, and were angry about it. Charles approached appellant's house, which was across from his. He was followed by Frank. Gunfire broke out. When it was over, appellant had shot and killed Charles. Frank was severely wounded and died later at a hospital. Appellant immediately left with his wife and child and turned himself over to the police. He gave the police his shotgun and said he was turning himself in to protect himself and his family. He signed a statement that he had shot Charles because Charles had been shooting at him.

In January 1980 appellant was tried on two counts of criminal homicide, one count charging him with the death of Charles, the other, with the death of Frank. The trial ended in a mistrial when the jury was unable to agree on a verdict. In August 1980 appellant was retried. On the count charging him with the death of Charles, the jury returned a verdict, but on the count charging him with the death of Frank, the jury was again unable to agree on a verdict. Timely post-verdict motions were filed, raising the same issues now argued to us. On January 2, 1981, the lower

[ 295 Pa. Super. Page 228]

    court filed an opinion and order denying the motions, and on January 16, 1981, imposed sentence.

1

Pa.R.Crim.P. 1100(e)(1) provides that "[w]hen a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial." This provision is applicable when, as here, a trial ends in a mistrial because the jury was unable to agree on a verdict. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Appellant's retrial therefore had to commence within 120 days of the January mistrial, or by May 15, 1980.

On May 1, 1980, appellant requested a continuance to allow new counsel to prepare his defense. Incident to this request, appellant signed a waiver of his Rule 1100 rights. Although this waiver was defective because it failed to state the period of the continuance, Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), this defect was cured when the court advised appellant on the record of his right under Rule 1100 to a speedy trial, and appellant agreed to a trial date during the first week of July.

On July 7 the court informed counsel that it was unable because of other business to proceed with the trial. As a result, the trial was continued until August 4, 1980. Appellant argues that because this was done without his having signed a waiver of his Rule 1100 rights, he should be discharged. This argument is without merit, for appellant consented on the record to the continuance:

Q. [By appellant's counsel] The Court has said that because of other commitments, they are unavailable to try this case this week. Have you heard that?

A. Yes, sir.

Q. And the Court is willing to continue this case until the August Term of Court, that would be the first full week in August. Have you heard that?

A. Yes, sir.

Q. That would begin August 3 through ...


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