Com. v. McCord

• Decision Date: 22 July 1994
• Parties: COMMONWEALTH of Pennsylvania v. Brian T. McCORD, Appellant.
• Court: Pennsylvania Superior Court

Page 1206

644 A.2d 1206

435 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Brian T. McCORD, Appellant.

Superior Court of Pennsylvania.

Submitted March 14, 1994.

Filed May 10, 1994.

Reargument Denied July 22, 1994.

Ralph T. Forr, Jr., Altoona, for appellant.

John M. Dalty, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.

Before CIRILLO, JOHNSON and BROSKY, JJ.

JOHNSON, Judge.

Brian T. McCord appeals from the order denying his petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm.

In his PCRA petition, McCord claimed that his constitutional right to a speedy trial and his right to due process were violated by pre-indictment, pretrial and post-verdict delays totaling approximately 12 years.

On February 27, 1979, a fire destroyed a grocery store owned by McCord and his brother. On November 4, 1983, the Blair County Investigating Grand Jury recommended that McCord be arrested for arson, 18 Pa.C.S. § 3301, in connection with the fire. On November 29, 1983, McCord was arrested and charged with arson endangering persons, 18 Pa.C.S. § 3301(a)(1), and arson endangering property, 18 Pa.C.S. § 3301(c)(3). Later that same day, McCord was preliminarily arraigned and released after posting bail.

The case was scheduled to be heard in March 1984, which was the next available trial session. The record, however, fails to reveal why the trial did not take place at that time. On April 9, 1984, McCord filed Omnibus Pretrial Motions, which included a request that the court postpone trial until a determination was made regarding all of his pretrial motions. McCord's pretrial motions also included a request for a change of venire which was later granted. On April 27, 1984, the Commonwealth timely filed a Petition for Extension Pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure (Rule 1100). Pursuant to discussions between the Court Administrator's Office and defense counsel, it was agreed that McCord's pretrial motions and the Commonwealth's petition for extension would be scheduled for a joint hearing set for October 3, 1984. See N.T., Continued Hearing on Omnibus Pretrial Motion and Rule 1100 Hearing, January 6, 1986, at 5-6.

Due to a scheduling problem with the visiting judge assigned to decide these matters, the hearing was rescheduled for November 8, 1984, and then again rescheduled for December 18, 1984. Id. at 6-7. At the December hearing, the court ruled upon some of McCord's motions, and a hearing on the remaining motions and the Commonwealth's petition was scheduled for May 13, 1985. Defense counsel filed a motion for continuance which was granted, and the matter was rescheduled for July 29, 1985. A hearing took place on that date, but the court failed to rule on the Commonwealth's petition for extension. The case was rescheduled for November 6, 1985, and defense counsel again requested a continuance. The matter was continued to January 6, 1986. In the interim, on November 14, 1985, McCord filed a Motion to Dismiss Under Rule 1100. On January 6, 1986, the trial court granted the Commonwealth's petition for extension and denied McCord's motion to dismiss.

On September 17, 1986, the court disposed of McCord's remaining pretrial motions and ordered that the matter be set for trial at the next available date. On October 15, 1986, the Commonwealth filed a second Petition for Extension Pursuant to Rule 1100. The trial court granted this petition and ordered that the matter be brought to trial no later than December 12, 1986. Pursuant to the grant of the requested change of venire, a jury was selected in Lebanon County on November 24, 1986.

On December 6, 1986, following a five-day trial, a jury found McCord guilty of one count of arson endangering property. On this same date, the court ordered that "bail in this matter as existed heretofore is continued." On December 12, 1986, McCord filed a Motion in Arrest of Judgment and/or a New Trial claiming, among other things, that the action should be dismissed for a violation of Rule 1100. The record, however, discloses no further action on McCord's post-verdict motions until June 20, 1990, some 42 months after the motions were filed. On this date, the trial court denied McCord's post-verdict motions. In its Opinion denying these motions, the court found that the Commonwealth exercised due diligence in bringing this case to trial, and stated that court backlog and McCord's extensive pretrial motions were sufficient reasons to extend the time periods under Rule 1100.

On January 4, 1991, McCord filed a Supplemental Motion for a New Trial which was to be heard on January 11, 1991. McCord requested a continuance, which was granted, and a hearing on the supplemental motion and sentencing were scheduled for March 19, 1991. On this date, McCord's supplemental motion was denied, and the court sentenced him to a term of imprisonment of 11 1/2 to 23 months, plus a fine and costs. The court also ordered that McCord's bail be continued pending appeal. McCord filed a direct appeal which raised seven issues, including the claim that he was entitled to an arrest of judgment since he was not tried within the time period mandated by Rule 1100. This Court reviewed the claim, determined that it was meritless, and affirmed the judgment of sentence on March 17, 1992. Commonwealth v. McCord, 420 Pa.Super. 639, 610 A.2d 66 (1992) (table), appeal denied, 532 Pa. 662, 616 A.2d 983 (1992). Following our supreme court's denial of his appeal, the trial court ordered that McCord report to the Blair County Prison no later than December 18, 1992, to commence his sentence.

On December 16, 1992, McCord filed a Petition for Writ of Habeas Corpus and Request for Stay from Sentence of Incarceration with the United States District Court for the Western District of Pennsylvania. On December 17, 1992, the District Court entered an order to stay the execution of judgment of sentence for 120 days. By order dated April 14, 1993, the District Court extended the stay for an additional 120 days. On July 1, 1993, the District Court dismissed the Habeas Corpus petition and lifted the stay. Consequently, on July 9, 1993, the trial court entered an order forfeiting the bail which was posted pending appeal and issued a bench warrant for McCord's arrest. Upon notification of the issuance of the bench warrant, McCord surrendered himself at the Blair County Prison.

On this same day, McCord filed a PCRA petition claiming that he was denied his constitutional right to a speedy trial and due process because of unjustified pre-indictment, pretrial and post-verdict delays. McCord's motion to set aside the bail forfeiture was filed and denied. On August 17, 1993, the trial court denied McCord's PCRA petition. This appeal followed.

On appeal, McCord argues that trial counsel was ineffective for failing to:

I. properly and timely raise the speedy trial and due process issues dealing with pre-indictment, pretrial and post-verdict delay under the U.S. and Pennsylvania Constitutions[;]

II. produce evidence as to the prejudice to the interest of the appellant that had occurred by the various delays[;]

III. [ (a) ] call certain witnesses in the defense of this matter[; (b) ] bring to the court's attention the fact that one female juror apparently performed pretrial discovery of the issues involved[; and, (c) show] circumstantial evidence ... that the jurors felt rushed into their verdict as their bags were packed at the motel where they had been accommodated for the prior week[.]

Brief of Appellant at 3.

When examining a post-conviction court's grant or denial of relief, this Court's scope of review is "limited to determining whether the court's findings were supported by the record and the court's order is otherwise free of legal error. The findings of the post-conviction court will not be disturbed unless they have no support in the record." Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (1994) (citation omitted).

Because the first two issues presented by McCord encompass the same arguments, they can be addressed as a single issue. McCord contends that trial counsel was ineffective for failing (1) to timely raise his speedy trial and due process claims dealing with the various delays under the United States and Pennsylvania Constitutions, and (2) to produce evidence of prejudice to McCord that resulted from the delays. Initially, we note that an allegation that trial counsel was ineffective for failing to raise a speedy trial claim is cognizable under § 9543(a)(2)(v) of the PCRA. See Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992), appeal denied, 534 Pa. 636, 626 A.2d 1155 (1993). Thus, we will review the merits of McCord's claim in which he asserts three separate areas of delay that caused the alleged violation of his right to a speedy trial.

Preliminarily, we observe that McCord has not made an effort to analyze how our Commonwealth's right to a speedy trial in Article 1, section 9, differs from the protection afforded in our Federal Constitution's Sixth Amendment. Consequently, as McCord has failed to argue that our Commonwealth's Constitution provides greater protection in this regard, we decline to address his state constitutional claim. See Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993); Commonwealth v. Edmunds, 526 Pa 374, 586 A.2d 887 (1991) (setting forth general rule that litigants must brief certain factors when state constitution is implicated).

First, McCord maintains that the pre-indictment delay denied him the right to a speedy trial and due process of law. Initially, we note that the Supreme Court of the United States has held that "as far as the Speedy Trial Clause of the Sixth Amendment is concerned, [a lengthy pre-indictment] delay is wholly irrelevant, since ... only 'a formal indictment or ... the actual restraints imposed by arrest ... engage the particular protections' of...