Com. v. Bittner

• Citation: 272 A.2d 484,441 Pa. 216
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 07 January 1971
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edward E. BITTNER, Appellant.

Page 484

272 A.2d 484

441 Pa. 216

COMMONWEALTH of Pennsylvania, Appellee, v. Edward E. BITTNER, Appellant.

Supreme Court of Pennsylvania.

Jan. 7, 1971.

Alan Frank, Pittsburgh, for appellant

Robert W. Duggan, Dist. Atty., Robert L. Campbell, Carol M. Los, Asst. Dist. Attys., Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

On June 10, 1966, while being moved within the Pittsburgh Public Safety Building, appellant Edward Bittner shot and killed Officer Gaetano of the Pittsburgh Police Department with the officer's gun. Appellant was indicted for murder and voluntary manslaughter by a grand jury in September, 1966. Eighteen months later, on March 11, 1968, appellant's case was listed for trial. Prior to trial, appellant's counsel filed numerous pretrial applications for relief including an application to quash the indictment for failure to afford him a speedy trial and a challenge of the array of jurors.

The speedy trial application was denied by the trial judge after oral argument. The challenge to the array of jurors was denied by the trial judge after an evidentiary hearing and oral argument thereon.

Immediately thereafter the matter proceeded to trial. Appellant was convicted of murder in the first degree and this appeal followed the denial of post-trial motions and formal sentencing to life imprisonment.

Appellant presents three arguments. He first repeats his allegations that he was denied a speedy trial and that he was denied an impartially selected jury. In arguing that he was denied a speedy trial, appellant emphasizes the twenty-one month delay between his arrest and trial and contends that all of this delay was the fault of the Commonwealth. We do not agree with appellant's view of the facts. We believe that much of the delay between his arrest and trial was of his own making.

On June 22, 1966, following an unsuccessful attempt to postpone the Coroner's inquest, appellant filed a petition for writ of habeas corpus. On August 12, 1966, a hearing was held and the petition was denied by order dated October 6, 1966. An appeal was taken to this Court and was quashed by per curiam order on December 11, 1967, on the grounds that an appeal was premature. Com. ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967). The record was remanded to the court below on December 11, 1967.

On August 19, 1966, appellant attempted an unsuccessful prison break and was subsequently hospitalized for several weeks to recuperate from injuries sustained in the attempted break.

On September 9, 1966, appellant filed a petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. By order dated September 13, 1966, the petition was dismissed for failure to exhaust state remedies.

On October 20, 1966, appellant filed an application for change of venue which was pending before the court but was subsequently withdrawn without prejudice on November 2, 1967.

On January 12, 1968, appellant filed another petition for writ of habeas corpus in the United States District Court, which was denied on January 16, 1968.

On January 12, 1968, appellant filed an application to set bail. A hearing was held on February 8, 1968. By order dated February 20, 1968, the application was denied.

On January 31, 1968, appellant filed an application for pretrial discovery and inspection. After argument, by order dated February 16, 1968, appellant was permitted to examine various items of evidence. On January 31, 1968, appellant filed an application for medical examination which was withdrawn on February 16, 1968. On February 16, 1968, appellant filed an application to produce jury lists which was dismissed on the same day.

On February 16, 1968, appellant filed an application to suppress evidence. A hearing on the application was held February 23, 1968, and it was denied by order dated March 5, 1968. An application for rehearing on the application to suppress was filed March 8, 1968. By order dated March 11, 1967, the application for rehearing was denied after hearing.

On February 26, 1968, appellant filed an application for bill of particulars which was answered on March 8, 1968. On February 27, 1968, appellant filed an application for discharge from imprisonment, which was denied March 11, 1968, after hearing.

On March 1, 1968, appellant filed an application to quash the indictment, which was denied on March 11, 1968, after hearing. On March 1, 1968, appellant filed a challenge to the array of jurors, which was denied on March 11, 1968, after hearing. On March 7, 1968, appellant filed an application for pretrial conference which was held on March 8, 1968.

On March 11, 1968, appellant entered a plea of not guilty. Trial finally commenced March 12, 1968.

Each petition necessitated an answer by the prosecution and many required the holding of evidentiary hearings or oral argument before resolution. In considering whether appellant was afforded a speedy trial, it must be remembered that 'the essential ingredient (of the constitutional right to a speedy trial) is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). Cf. Commonwealth v. Stukes, 435 Pa. 535, 257 A.2d 828 (1969). As we said in Stukes, 'in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace.' (At page 545, 257 A.2d at page 833.) In view of the many procedural steps followed by the appellant, we be...