Com. v. Coffey

• Decision Date: 23 September 1974
• Citation: 230 Pa.Super. 49,331 A.2d 829
• Parties: COMMONWEALTH of Pennsylvania v. Maureen COFFEY, Appellant.
• Court: Pennsylvania Superior Court

Page 829

331 A.2d 829

230 Pa.Super. 49

COMMONWEALTH of Pennsylvania v. Maureen COFFEY, Appellant.

Superior Court of Pennsylvania.

Sept. 23, 1974.

Application for Allocaturs Denied Dec. 11, 1974.

Clencie L. Cotton, Pittsburgh, for appellant.

Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Before WATKINS, P.J., and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge.

This is an appeal from appellant's conviction on several charges of possessing and dealing in illegal drugs. Several issues are raised which we find to be without merit, and we affirm the conviction.

The first issue we will consider is whether the lower court should have suppressed certain evidence seized by police, because the search warrant they used was not based on probable cause. 'Probable cause requires proof of facts and circumstances as would excite an honest belief in a reasonable mind, acting on all the facts and circumstances within knowledge of the magistrate, that the charge made by the applicant for the warrant is true.' Commonwealth v. Crawley, 209 Pa.Super. 70, 78, 223 A.2d 885, 890 (1966), Quoting Commonwealth v. Griffin, 200 Pa.Super. 34, 39, 186 A.2d 656, 658 (1962). Moreover, the information found in the affidavit for the search warrant need not reflect the personal observations of the affiant, but can be based on information received from an informant. Commonwealth v. Crawley, supra. In the present case, the affidavit for the search warrant disclosed that the informant 'was in (appellant's) residence twice in the past week of December 19, 1971, and bought heroin from Maureen (appellant) on one occasion, and her mother on another occasion.' The affidavit further disclosed the names and addresses of two persons arrested and convicted on information that had been previously supplied by this informant. We are convinced that the affidavit for the search warrant contained sufficient information to support the reliability of the informant and establish probable cause. Compare Commonwealth v. Brown, 228 Pa.Super. 158, 323 A.2d 104 (1974) (probable cause for warrantless arrest not established). ¹

Appellant's second argument is that she was prejudiced because the court below refused to require the production of a certain witness, held as a prisoner by federal authorities, who would have proved helpful to her defense. An accused's right 'to have compulsory process for obtaining witnesses in his favor' is guaranteed by the Constitution of Pennsylvania in Article I, § 9, P.S. However, implicit in such a right is the requirement that the defendant establish that the person to be produced has relevant or material testimony on the issues in question. See State v. Lerner, 308 A.2d 324 (R.I.1973). In the present case, the record reveals that defense counsel agreed to contact the prisoner to ascertain what his testimony would cover. Although counsel did, on one occasion, contact the prisoner and request an affidavit from him as to the basis of his proposed testimony, no affidavit was forthcoming when the case was called for trial. Because such specific information to advise the court what this witness had to offer was not presented, the lower court properly declined to order the witness's production.

For her third argument, appellant claims that she was denied her right to a speedy trial which is guaranteed by both the Federal and our Commonwealth's Constitution. Appellant was arrested for the present offenses on or about December 23, 1971, and May 18, 1972. On January 21, 1972, she was released upon posting an appearance bond. On May 31, 1972, after her second arrest, she was again released on bail pending trial. In June of 1972, the grand jury returned the indictment for the aforementioned charges. It was not, however, until January 24, 1974, that she received her trial. Thus, at first glance, the period of delay from arrest until trial was 25 months for some of the offenses and 20 months for others. Appellant must take responsibility for 2 months of that delay, because the Commonwealth was prepared for trial on November 26, 1973, but defense counsel needed more time to contact one of their witnesses. However, even with that reduction, the remaining unexplained delay of 23 and 18 months must be reviewed.

Presently, Rule 1100 of the Pennsylvania Rules of Criminal Procedure governs the time limits in which a trial shall commence after a written complaint has been filed. However, Rule 1100 specifically applies only to prosecutions commenced by written complaint after June 30, 1973. In the present case, the written complaints were filed in December 1971 and May 1972 and, accordingly, Rule 1100 is not applicable. To cases not affected by the adoption of Rule 1100, our courts have applied the balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether an accused has been denied his right to a speedy trial. Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Under this test, the related factors to be considered together are: the length of the delay; the reason for the delay; the defendant's assertion of his right to a speedy trial; and the prejudice to the defendant from the delay. Id. ²

First, as noted earlier, the delay involved in this case was approximately 25 months for several of the offenses. Even a delay this great is not sufficient alone to warrant the dismissal of the charges against appellant. See Commonwealth v. Jones, supra (where delay of 32 months between arrest and trial held not a denial of right to speedy trial). However, such a delay does require us to carefully review the remaining factors.

Second, the reason for the delay is largely unexplained, except for 2 months attributed to appellant. On the other hand, there is no evidence that the delay was a tactic on the part of the prosecution to prejudice appellant's defense. Cf. Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973).

Third, we find that appellant has not promptly asserted her right to a speedy trial. Although she was aware of the charges against her, appellant waited for over 22 months (and until the week before the first proposed trial) to present her motion to dismiss the indictment for lack of a speedy trial. Moreover, the record fails to disclose any request by appellant during this...