Court is required to give notice to the parties of the date and place in which oral argument has been scheduled, and although the parties may agree to submit a case for a decision on the briefs, the Court may direct that the case be argued. Pa.R.App.P. 2311, 2312.
It is apparent from a reading of the rules governing appellate procedure that an expeditious appeal process is contemplated. Provisions relating to the transcription and transfer of the record to the appellate court, those relating to the scheduling of briefs, and those requiring prompt notice of submission indicate that a prompt appeal is contemplated by both statute and by the appropriate rules of appellate criminal procedure.
Similarly, the procedural rules governing the filing and disposition of post-trial motions following a conviction but prior to the commencement of direct appeal suggest a process geared to expeditiousness. These procedures are set forth in the Pennsylvania Rules of Criminal Procedure. Rule 1123 provides that within 10 days after a finding of guilt, the defendant must file written motions for a new trial and/or arrest of judgment. The Rule provides that argument or a hearing or both shall be scheduled and heard promptly after such motions are filed. An amendment to Rule 1123 provides that if the grounds asserted do not require a transcript, then neither the filing, argument, nor hearing of the post verdict motions are to be delayed for the lack of a transcript or the notes of the testimony.
An appeal may not be taken in the absence of a final order or the disposition of post-trial motions and often time the delay on the disposition of post verdict motions by the court en banc is attributable to the delay in the transcription of the court proceedings. At the time of Hankins' conviction, Rule 1123 did not provide for the hearing of post verdict motions under the limited circumstances exception to the transcript requirement; however, we note that petitioner's trial lasted one day and it is unlikely that a delay in the disposition of post verdict motions is attributable to the need for a written transcript.
In reviewing the facts of the instant case the court looks to the petition and also relies upon certain facts which although outside the record are matters about which the court takes judicial notice. Hankins was convicted on May 19, 1981 at which time he was proceeding with what appears to have been the advisory assistance of the Public Defender's Office. Post trial motions were filed thereafter apparently by newly-appointed counsel. An Opinion and Order was issued on December 7, 1981 affirming petitioner's conviction and clearing the way for his subsequent sentence. He was sentenced on February 12, 1982 and a notice of appeal was filed on March 9, 1982. Petitioner was thereafter represented by new counsel in his direct appeal to the Superior Court. A brief was filed on behalf of the petitioner on October 12, 1982, and a responsive brief was timely filed by the Commonwealth. On February 16, 1983, counsel for the petitioner on appeal was informed to list the case for oral argument. This was done by a letter of counsel to the Prothonotary of the Superior Court dated February 21, 1983. Thereafter counsel for the petitioner and petitioner himself contacted the Superior Court Prothonotary's Office in an attempt to determine when oral argument would be set. Counsel wrote the Prothonotary on September 6, 1983, and subsequently received a returned phone call by which he was informed that the matter would be submitted to the Court at oral argument in due course. Petitioner's letter to the Prothonotary was answered by correspondence dated October 25, 1983, in which it was stated that counsel for the petitioner would be informed of the date when argument would be heard. Petitioner thereafter filed this writ of habeas corpus received by the Clerk on November 30, 1983. Oral argument was scheduled and heard on January 24, 1984, in the Superior Court.
We take note that over two and one-half years have passed since petitioner's conviction and no appellate court has disposed of the claimed errors at petitioner's one day trial. We have noted that the initial nine months of that period involve proceedings subsequent to the conviction but prior to the time of sentencing in the Court of Common Pleas. In passing upon petitioner's claim, we feel that the time period involved in the disposition of post-conviction motions must be aggregated with the period of delay in his direct appeal. The Rules do not provide an absolute right to review by an en banc court or by a judge other than the trial court. A petitioner may be denied the opportunity to have the rulings of the trial judge reviewed by a higher court or by other judges until his appeal is submitted to the next highest court. This is so where petitioner is bound by the rules to raise in post verdict motions those issues he might eventually raise on direct appeal under penalty of forfeiture and because the trial judge is free to make any decisions and rulings which could be made by a court en banc should he determine that the post verdict motions shall be argued before himself. We feel that measurement of the time on appeal for purposes of evaluating Hankins' claim must include the initial post-verdict period during which Hankins attacked his conviction in the trial court or before the court en banc. We recognize that some of the delay in disposing of petitioner's appeal may be attributable to the petitioner himself.
Federal Courts recognize that excessive delays in state court proceedings in which a defendant claims that his conviction was obtained in violation of his constitutional rights may deny the defendant due process of law and also may justify a federal court in considering alleged denials of due process relating to the delay itself and also justify the consideration of the merits of the habeas corpus petition. See, e.g. Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966), cert. denied 389 U.S. 871, 19 L. Ed. 2d 151, 88 S. Ct. 154 (1967), (more than a year elapsed since filing post conviction relief and still no argument heard); Jones v. Crouse, 360 F.2d 157 (10th Cir. 1966), (eighteen month delay in appeal from a denial of motion for post conviction relief); Dixon v. State of Florida, 388 F.2d 424 (5th Cir. 1968) (twenty month delay in post conviction proceedings); St. Jules v. Beto, 462 F.2d 1365 (5th Cir. 1972) (twenty-seven month delay in state habeas corpus proceedings); Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (seventeen month delay in direct appeal); Odsen v. Moore, 445 F.2d 806 (1st Cir. 1971) (thirty four month delay in direct appeal).
Similarly, the Third Circuit has granted relief because of the inordinate delay in state court proceedings. In United States ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975) habeas corpus relief was granted after a three year delay in disposing of a new trial motion. In United States ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973) similar relief was granted after a three and one-half year delay in disposing of a PCHA petition. In Codispoti v. Howard, 589 F.2d 135 (3d Cir. 1978), the court held that the petition for habeas corpus was not premature because of a failure to exhaust state remedies, and remanded to the district court for an evidentiary hearing to determine why petitioner's new trial motion had not been disposed of for twelve years.
We find that the allegations set forth in this petition raise a serious question as to the adequacy of the state remedies available in practice. The nine month period between petitioner's conviction and the filing of a notice of appeal, and the twenty-four month period since, are sufficient to raise a prima facie question of denial of due process. In light of the court's ruling we need not address the remainder of petitioner's claims at this stage.
An appropriate order will issue.