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COMMONWEALTH PENNSYLVANIA v. ALBERT GLOVER (04/27/83)

decided: April 27, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ALBERT GLOVER, APPELLANT



No. 58 W.D. Appeal Docket, 1982, Appeal From the Judgment of the Superior Court of Pa. at No. 2218 Philadelphia, 1981 affirming the Judgment of Sentence of the Court of Common Pleas of Potter County at No. 70 of 1976, Criminal Division, Commonwealth v. Glover, Pa. Super. , Samuel J. Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Larsen

[ 500 Pa. Page 526]

OPINION

On October 7, 1976, appellant, Albert Glover, was convicted by a jury of aggravated assault. Motions for a new trial and arrest of judgment were filed on October 13, 1976 but

[ 500 Pa. Page 527]

    were withdrawn on March 31, 1977. On April 20, 1977, appellant was sentenced to a term of imprisonment of eighteen to thirty-six months.

On May 25, 1977, the trial court granted appellant's motion to vacate sentence and reinstate post-verdict motions. The record discloses no further action on appellant's post-verdict motions until August 27, 1980, some 37 months after post-verdict motions were reinstated.*fn1 On this date, appellant filed a motion to dismiss the charges against him, arguing that the delay by the trial court in disposing of his post-verdict motions violated Pa.R.Crim.P. 1122 and the Sixth Amendment of the United States Constitution. This motion was denied on February 9, 1981.

On March 25, 1981, oral argument was held on appellant's post-verdict motions. Appellant's post-verdict motions were denied on April 29, 1981, and appellant was sentenced on June 24, 1981 to a term of imprisonment of six to twenty-three months. The judgment of sentence was affirmed by the Superior Court, 303 Pa. Super. 229, 449 A.2d 662, and this Court granted appellant's petition for allowance of appeal.

Appellant first contends that the 49 month delay between the date on which his post-verdict motions were reinstated and the date on which he was sentenced violated the speedy trial provision of the Sixth Amendment.*fn2 Neither this Court nor the United States Supreme Court has expressly held that the disposition of post-verdict motions or sentencing is a part of trial for Sixth Amendment purposes. However, we will assume arguendo that disposition of post-verdict motions and sentencing are a part of trial for purposes

[ 500 Pa. Page 528]

    of a defendant's Sixth Amendment right to a speedy trial.*fn3

In determining whether a defendant's constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant's timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

In the instant case, there was a 49 month delay between the time that appellant's post-verdict motions were reinstated and the time that appellant was sentenced. This delay is certainly sufficient to trigger this Court's further inquiry.*fn4

In evaluating the reason for the delay, the United States Supreme Court in Barker v. Wingo, supra has set ...


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