Com. v. Myers

• Decision Date: 25 April 1977
• Parties: COMMONWEALTH of Pennsylvania v. James MYERS, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 1279

371 A.2d 1279

472 Pa. 200

COMMONWEALTH of Pennsylvania v. James MYERS, Appellant (two cases).

Supreme Court of Pennsylvania.

Argued Jan. 20, 1976.

Decided Feb. 28, 1977.

Rehearing Denied April 25, 1977.

[472 Pa. 204] Daniel H. Greene, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

Appellant, James Myers, was arrested on January 24, 1969 and charged, with three others, in the robbery-murder of Charles Ben-Ami. On August 7, 1974, he was found guilty by a jury of murder in the first degree and aggravated robbery. After denial of his post-trial motions, appellant was sentenced to life imprisonment on the murder conviction and to a concurrent ten to twenty year term on the robbery one. These appeals followed. ¹

The first of appellant's arguments for our consideration is that he was denied a speedy trial in violation of the United States and Pennsylvania Constitutions. ² Appellant was arrested on January 24, 1969, and indicted on June 11, 1969. Trial was not convened until July 25, 1974, over five and one-half years since his arrest. Appellant was incarcerated for four and one-half years of that period. ³

It is argued first, that we should dismiss the indictments ⁴ for a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. ⁵ However, that Rule is inapplicable to the instant case because this case began prior to the effective dates in that Rule. Commonwealth v. Lee, 460 Pa. 374, 379 n. 2, 333 A.2d 773, 776 n. 2 (1975); Commonwealth v. Hamilton, 449 Pa. 297, 308--09, 297 A.2d 127, 132--133 (1972); See Commonwealth v. Woods, 461 Pa. 255, 257, 336 A.2d 273, 274 (1975).

In the absence of a claim based upon Rule 1100, the instant facts are controlled by the analysis set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case, the United States Supreme Court delineated four factors to be considered in an examination of a speedy trial violation claim. Those factors to be considered are: the length of the delay; the reason for the delay; the defendant's assertion of his right; and the prejudice to the defendant. This Court has applied this analysis several times previously. See, e.g., Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Hamilton, supra.

The length of the delay is not, Per se, determinative. Barker, supra 407 U.S. at 533, 92 S.Ct. 2182. Extensive delay is the triggering mechanism which raises a presumption of a speedy trial violation, thus necessitating an inquiry into the remaining factors. Barker, supra at 530, 92 S.Ct. 2182; Roundtree, supra at ---, 364 A.2d at 1364; Commonwealth v. Williams, 457 Pa. 502, 327 A.2d 15 (1974). Undoubtedly, the five and one-half year delay in the instant case raises this presumption and, indeed, the Commonwealth concedes as much in its brief. Despite this extraordinary delay, we conclude, upon balancing the other factors involved, that there was no denial of the speedy trial rights of appellant.

We first examine the reason for the delay in this case. In discussing this factor, the United States Supreme Court stated:

'Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.'

Barker, supra at 531, 92 S.Ct. at 3192.

Although appellant was arrested in January 1969, and indicted in June of that year, his trial was not listed until February 9, 1970. This period, up until the first listing, is the only unexplained delay in this case. However, from this first listing until October 1971, there were several continuances which the court below found were caused by appellant's counsel's unavailability for trial. The court placed the burden for this delay solely upon appellant and his counsel and the record supports that conclusion.

There are two other time periods which we cannot consider to be unjustified delay. The first started in February 1972, when a hearing was held on a motion to suppress appellant's allegedly involuntary statement. This motion was eventually denied in November 1972. The second period began in August 1973. Appellant's newly appointed counsel filed a motion to quash the indictments on grounds of a speedy trial violation. The denial of that motion was appealed to this Court and, on July 3, 1974, we ruled that appeal was interlocutory and ordered a trial forthwith. Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974).

These periods, nine months for resolution of the motion to suppress and eleven months for appeal of the motion to quash, cannot be labeled unjustified delay. As Mr. Justice Roberts stated previously for the Court:

'We believe that a reasonable amount of time consumed by the disposition of motions and interlocutory appeals not made for purposes of delay, regardless of who is the moving party, is justifiable delay.'

Commonwealth v. Ware, 459 Pa. 334, 347, 329 A.2d 258, 264--65 (1974). In view of the fact that the pre-trial motions and interlocutory appeals in Ware consumed thirty-three months Id., the instant periods are not unreasonable. Furthermore, there was evidence in the record that part of the delay in the suppression decision was because appellant's first attorney was tardy in filing his brief on that issue.

Yet another source of delay can be laid at the feet of appellant's first attorney. After the motion to suppress was denied, the case was ready for trial on November 30, 1972. The attorney, Mr. Moore, at that time requested a medical examination to determine if appellant was able to stand trial. The case was again listed for December 18, 1972, after it was determined that appellant was fit to stand trial. However, Mr. Moore then began a program designed to expedite the processing of his large caseload. ⁶ As part of this program, he was not scheduled for murder trials until the spring of 1973. The first such case to be called was the instant one. However, Mr. Moore requested a delay so that the court could hold a hearing concerning the results of the December medical examination. Shortly after this, appellant dismissed Mr. Moore and his present counsel was appointed. Based upon this series of events and the testimony by the Commonwealth witnesses that the prosecution was at all times ready for trial, the court below concluded that 'the record indicates that the actual delay in bringing the Defendant to trial was not caused by the Commonwealth, but rather was caused by Mr. Moore's unavailability for trial, and the delays occasioned by the motion to suppress and the motion for a competency hearing.' Upon a review of the record, we agree that the greater amount of the delay is attributable to appellant and not to the Commonwealth.

Nonetheless, appellant, relying upon Commonwealth v. Williams, supra, argues that the delay is attributable to the state because it is the duty of the Commonwealth to bring a defendant to trial and the duty of the court to control an attorney's calendar. In referring to Mr. Moore and his large caseload, this Court discussed the problem at length in Williams.

'Although the record substantiates the allegation that the delay was precipitated by appellant's attorney's scheduling problems, this does not end the inquiry. Counsel was court appointed. . . . The court not only has a duty to appoint counsel but also the responsibility to exercise its inherent power to control the trial calendar. See Pa.R.Crim.P. 1100.

Moreover, the prosecution not only failed to object to the appointment of an attorney with a substantial backlog, but actively participated in delaying appellant's trial. As part of the 'priority program' initiated to expeditiously dispose of the substantial criminal back log in the Philadelphia courts, a courtroom and assistant district attorneys were assigned to appellant's counsel. The record establishes that subject to the court's ultimate power and duty to control its calendar, scheduling of the cases was left to the parties. According to the testimony of an assistant district attorney assigned to the program: 'We wanted to take the easier cases, so we just simply put the homicides aside and we didn't even discuss them. . . .' This prosecutorial conduct resulted in appellant's case not even being considered for more than two years. Certainly this admission precludes a finding that the Commonwealth was not responsible for the procrastination which characterized the scheduling of appellant's trial.' (Citations omitted).

However, for several reasons we believe Williams is inapposite. First, the delay occasioned by Mr. Moore's priority program in the instant case was about six months, far short of the two years in Williams. Second, in the present case Mr. Moore was privately retained. The court had no control over his appointment and the Commonwealth could not interfere in this choice in any manner. Because the Commonwealth had no say in appellant's choice of attorney and because any active participation resulted in only six months further delay, we cannot place the burden for all of this delay upon the Commonwealth. See Commonwealth v. Dowd, --- Pa. ---, 372 A.2d 705 (1977); See also Commonwealth v. Hicks, 231 Pa.Super. 272, 332 A.2d 452 (1974).

The next factor to be considered is appellant's assertion...