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COMMONWEALTH PENNSYLVANIA v. HENRY M. GREER (02/24/89)

filed: February 24, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HENRY M. GREER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division at No. 1009 C.A. 1979.

COUNSEL

Clyde W. Vedder, York, for appellant.

Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.

Kelly, Popovich and Hester, JJ. Kelly, J., files a Concurring Statement.

Author: Popovich

[ 382 Pa. Super. Page 130]

This is an appeal from the judgment of sentence entered on March 31, 1988, by the York County Court of Common Pleas, following the appellant's conviction on the charges of rape and robbery on March 21, 1980. The appellant contends we should vacate his sentence due to the inexcusable delay of over seven and one-half years between the denial of his post-verdict motions and sentencing. In the alternative, the appellant contends that we should compel the lower court to enter the same sentence as that originally imposed. We disagree and affirm the judgment of sentence.

The record reveals the following procedural history: On March 21, 1980, after a trial by jury, the appellant was convicted of rape and robbery, at 1009 Criminal Action

[ 382 Pa. Super. Page 1311979]

. Timely post-trial motions were filed and argued on July 8, 1980. His motions were denied, and sentencing was set for August 8, 1980. On August 8, Judge Joseph E. Erb sentenced the appellant to a term of imprisonment of ten to twenty years on the rape charge and a consecutive term of five to ten years on the robbery charge.

On August 20, 1980, new counsel, Attorney Pell, was appointed to represent the appellant. On September 4, 1980, counsel, fearing he would be unable to prepare and file an appeal by September 8, 1980, Pell petitioned the court to vacate the appellant's sentence, reimpose the sentence at a later date and then entertain a motion for reconsideration of sentence and a Post Conviction Hearing Act petition at that time. Judge Erb granted the motion the following day, scheduling another sentencing hearing for October 17, 1980. At the sentencing hearing, actually held on October 16, counsel requested a postponement on the grounds that the transcription of the appellant's trial and subsequent proceedings had not been completed. Judge Erb agreed to postpone the sentencing until the transcript was completed. It is apparent from the record that the transcript was completed and filed by April 29, 1981. However, inexplicably, a date for sentencing was never set, and no appeal was filed.

Meanwhile, the appellant was convicted of rape, burglary and aggravated assault in a factually similar but unrelated case, at 1060 Criminal Action 1979. Later in the day of October 16, 1980, Judge Emanuel A. Cassimatis sentenced the appellant to a term of incarceration of ten to twenty years on the rape conviction and a consecutive term of five to ten years on the burglary conviction; an aggravated assault conviction was merged into the rape conviction for sentencing purposes. From the record, it is clear that Judge Cassimatis intended his sentence to run consecutively to that previously imposed (and subsequently vacated apparently without Judge Cassimatis' knowledge) by Judge Erb.

[ 382 Pa. Super. Page 132]

Subsequently, in April of 1982, counsel for the appellant, Attorney Pell, filed a PCHA petition alleging the ineffectiveness of trial counsel, Attorney Oare. Simultaneously, the appellant filed a pro se PCHA petition alleging the ineffectiveness of current counsel, Attorney Pell. Consequently, new counsel, Attorney Kelly, was appointed, and the PCHA hearing was postponed in order to allow new counsel to file an amended petition. On May 25, 1983, a PCHA hearing was held, briefs in support and in opposition to the petition were filed, and, finally, on March 20, 1985, the appellant's petition for post-trial relief was denied. On April 19, 1983, notice of appeal from the denial of PCHA relief was filed. However, on July 30, 1985, the appeal was quashed due to the appellant's failure to file a brief.

Following the appellant's petition for appointment of new counsel, present counsel, Attorney Vedder, was appointed on January 29, 1987. Thereafter, counsel filed another PCHA petition requesting the appellant's appellate rights concerning his PCHA appeal be restored. A hearing date was set for May 27, 1987. However, the record is silent as to any further information concerning that PCHA petition. In any event, on November 9, 1987, the court, following a discussion with the Commonwealth and defense counsel, ordered the appellant to appear for sentencing on January 25, 1988. After several delays, sentencing took place on March 31, 1988 before (now) President Judge Erb.

At this sentencing hearing, counsel moved that the convictions against the appellant, at 1009 C.A.1979, be dismissed or, in the alternative, that the instant sentences be made to run concurrently with the sentences imposed by Judge Cassimatis, at 1060 C.A.1979. Judge Erb noted that, at the time Judge Cassimatis sentenced the appellant, Judge Cassimatis believed he was sentencing the appellant consecutively to the sentences which Judge Erb had imposed (and subsequently vacated). Judge Erb, realizing Judge Cassimatis's sentences could not run consecutively to the sentences he would soon impose, questioned whether his sentences

[ 382 Pa. Super. Page 133]

    should run consecutively to those imposed some seven and one-half years earlier by Judge Cassimatis?

After reviewing the appellant's case, Judge Erb decided that he would impose the same sentences which he had previously vacated and that the sentences would begin to run at the expiration of those imposed by Judge Cassimatis. Judge Erb noted that "[w]e do not see how delay in the sentencing of this Court [was detrimental to the Defendant] since the sentencing was prompt but removed at the request of counsel and since the Defendant has been incarcerated since the case was tried in court on other matters and since the Defendant is protected with regard to any appeal with which he wishes to take . . ." (Sentencing Transcript, March 31, 1988, p. 8-9).

While not expressly framing his argument in terms of violations of his constitutional rights, the appellant, in effect, claims: 1) he was denied his right to a speedy trial, as provided under the Sixth Amendment and made applicable to the states through Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); and 2) he was denied protection under the Due Process Clause of the Fourteenth Amendment with regard to his appeal as of right, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir.1987).*fn1

In Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983), our Supreme Court addressed the issue currently before us. Therein, the Court stated:

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

[ 382 Pa. Super. Page 134]

    disposition of post-verdict motions and sentencing are a part of trial for the purposes of a defendant's Sixth Amendment right to a speedy trial.

Glover, 500 Pa. at 529, 458 A.2d at 937.

This approach was first adopted by our Supreme Court in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), and has been followed in subsequent Pennsylvania cases. See Commonwealth v. Atkinson, 364 Pa. Super. 384, 528 A.2d 210 (1987); Commonwealth v. Tillia, 359 Pa. Super. 302, 518 A.2d 1246 (1986); Commonwealth v. Button, 481 A.2d 342. Rather than merely continue to perpetuate the assumption that the Speedy Trial Clause applies to sentencing, we will treat the subject as established law. In so doing, we follow the lead of the federal judiciary which first made the assumption. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (lead case applying the assumption that the Speedy Trial clause applies to sentencing); Burkett v. Cunningham, 826 F.2d at 1220 ("We now make explicit what we have assumed in our previous cases, that the Speedy Trial clause of the Sixth Amendment applies from the time the accused is arrested or criminally charged . . . up through the sentencing phase of prosecution . . ."); Perez v. ...


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