Com. v. Pounds

• Decision Date: 03 July 1980
• Citation: 490 Pa. 621,417 A.2d 597
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gary Gerald POUNDS, Appellant.
• Court: Pennsylvania Supreme Court

Page 597

417 A.2d 597

490 Pa. 621

COMMONWEALTH of Pennsylvania, Appellee, v. Gary Gerald POUNDS, Appellant.

Supreme Court of Pennsylvania.

Submitted March 3, 1980.

Decided July 3, 1980.

John H. Corbett, Jr., Asst. Public Defender, H. Patrick McFalls, Pittsburgh, for appellant

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

EAGEN, Chief Justice.

On July 9, 1976, a jury found Gary Pounds guilty of murder of the first degree, possession of an unlicensed firearm, crime with a firearm, two counts of theft, and one count of receiving stolen property. Post-verdict motions were denied on June 9, 1978, and, on June 27, 1978, Pounds was sentenced to life imprisonment on the murder conviction. Sentence was suspended on the other offenses. This appeal is from the judgment imposed on the murder conviction.

The trial record discloses the following:

At 1:28 a. m. on July 24, 1975, the body of Joe McGuane, Pound's father-in-law, was found at Gregg Station where he was employed as an oil tank gauger and truck driver. The cause of death was later determined to be multiple gunshot wounds of the head, face, neck, and hands. Analysis of bullet fragments removed from the body indicated the bullets had come from a revolver of .32 or larger calibre. The victim was last seen alive at 6 a. m. on July 23, 1975 and several phone calls to the victim from his supervisor made between 7 and 8 a. m. had gone unanswered.

Ann McGuane, the victim's wife, testified that she was awakened on July 23, 1975 at approximately 6:30 a. m. by the sound of their garage door going up and that she roused her son, Terry McGuane, told him to get his gun, and then called the police. Terry McGuane testified that, after being awakened by his mother and getting his shotgun, he saw Gary Pounds run past the side of the house towards a wooded area to the rear, chased him, and fired a shot at him. The police arrived at approximately 7 a. m. and found in the wooded area, inter alia, a cold six-pack of Duquesne beer, the brand Gary Pounds normally drank, and a windbreaker containing three spent and three live .38 calibre ammunition. In the garage underneath Mrs. McGuane's automobile, the officers found a stained work shirt similar to those worn by Gary Pounds which contained a partial pack of Phillip Morris cigarettes, the brand Gary Pounds normally smoked. Subsequent analysis of blood stains on the shirt indicated the blood was consistent with Joe McGuane's blood type.

Gary Pounds was arrested on the evening of July 24, 1975 at which time a .38 special revolver was found in the car he was driving. The revolver had been stolen from a trailer owned by Dan Leonard.

Beverly Herrick, a friend of Pounds, testified that Pounds had come to a motel where she resided at approximately 10:30 a. m. on July 23, 1975; that he asked her to follow him in her automobile to a strip mine so he could dispose of the automobile he was driving (later determined to have been the victim's, Joe McGuane's) for a friend in order to collect the insurance; that, after disposing of the McGuane vehicle, the two retrieved Pounds' automobile from behind a culm pile in the vicinity of Gregg Station; and, that they dropped Pounds' automobile off at a local shopping mart. Herrick also testified Pounds had told her he had killed his father-in-law.

Jerome Harris, an inmate of the jail in which Pounds was originally incarcerated, testified Pounds had told him he, Pounds, had shot Joe McGuane some time between 6 and 7 a. m. on July 23, 1975 after an argument.

Testifying in his own behalf, Pounds denied shooting Joe McGuane, disposing of his automobile, having been at the McGuane home on the morning of July 23, 1975, and having told Beverly Herrick or Jerome Harris that he killed Joe McGuane. He further testified that, during the night of July 22 and morning of July 23, he slept in his automobile which was parked in front of the trailer in which the Leonard family resided, some distance from Gregg Station; that he awoke before 8 a. m. and then drove to his mother's house where he sat alone on the porch until Beverly Herrick arrived; and that he had spent the next 24 hours with Ms. Herrick.

Initially, Pounds contends the trial court erred in denying his motion to dismiss based on a claimed violation of his right to a speedy trial due to a delay of nearly two years between the jury's verdict and his sentencing. Although in dicta in the opinion announcing the decision of the court in Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 219, 82 A.2d 244, 248 (1951), Mr. Justice Charles Alvin Jones stated: "The suggestion that the constitutional right of an accused to a speedy trial requires that he be sentenced timely is, of course, true," our Court has not expressly held that sentencing is part of trial for Sixth Amendment purposes or for purposes of Article I, § 9 of the Pennsylvania Constitution. ¹ Moreover, the United States Supreme Court has also failed to squarely decide whether sentencing is included within the Sixth Amendment right to a speedy trial. See Pollard v. U. S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); Dickey v. Florida, 398 U.S. 30, 44, 90 S.Ct. 1564, 1572, 26 L.Ed.2d 26 (1970). (Concurring opinion by Mr. Justice Brennan in which Mr. Justice Marshall joined.) However, as did that Court in Pollard v. U. S., supra, 352 U.S. at 361, 77 S.Ct. at 486, we will assume arguendo that sentence is part of trial for purposes of a defendant's right to a speedy trial. ²

In that context, whether a delay in sentencing amounts to an unconstitutional deprivation of a speedy trial right depends upon the circumstances. Pollard v. U. S., supra; accord, United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). See also Commonwealth ex rel. Holly v. Ashe, supra. Such delay must not be purposeful or oppressive. Pollard v. U. S., supra; accord, United States v. Ewell, supra. The principal factors to be considered in determining whether a delay in sentencing has deprived a defendant of his right to a speedy trial are length of delay, reason for the delay, assertion of the right, and resulting prejudice to interests protected by the right to a speedy trial. ³ Accord, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). ⁴

In the present case, the jury returned its verdict on July 9, 1976, and Pounds was sentenced on June 27, 1978, a delay of almost two years. This period of delay did not extend beyond the collective maximum term of imprisonment for the offenses of which Pounds was convicted ⁵ and, thus, does not render sentencing, prima facie, invalid. Commonwealth ex rel. Wilhelm v. Morgan, 278 Pa. 395, 123 A. 337 (1924); Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958). See also Commonwealth v. Rutherford, 252 Pa.Super. 348, 381 A.2d 952 (1977). However, this delay is sufficient to trigger further inquiry. See Barker v. Wingo, supra; Commonwealth v. Jones, supra.

The second factor to be considered is the reason for the delay. Here, the record shows that Pounds' post-verdict motions were filed on July 14, 1976, argued May 3, 1977, and denied on June 9, 1978; and that he was sentenced 18 days later. Although post-verdict motions are to be disposed of prior to sentencing, see comment to Pa.R.Crim.P. 1405; Commonwealth v. Souder, 376 Pa. 78, 101 A.2d 693 (1954); Commonwealth ex rel. Holly v. Ashe, supra; Commonwealth v. Middleton, 242 Pa.Super. 421, 364 A.2d 342 (1976), that in itself does not justify an inordinate delay in sentencing. The record reveals the 9 1/2 months between the filing of post-verdict motions and argument on the motions ⁶ was largely chargeable to Pounds' inability to obtain a trial transcript due to his failure to pay for it. ⁷ However, Pa.R.Crim.P. 1122 requires the disposition of post-verdict motions within 30 days of argument except under unusual circumstances. In this case, post-verdict motions were not decided for 13 months after argument. The only explanations offered of record were the presiding judge's heavy caseload and his admittedly inadequate administration of those cases. While the former offers some excuse for the delay, these reasons do not justify a delay of a year beyond the time required for disposition of post-verdict motions. ⁸

The next circumstance of importance is whether Pounds asserted his right to be sentenced without unreasonably delay or, more appropriately, requested timely disposition of his post-verdict motions. Although Pounds apparently sent several letters to the court, the substance of these letters does not appear of record and he did not file any formal petition seeking immediate decision on his post-verdict motions or immediate sentencing. ⁹

The final factor for our consideration is the prejudice from the delay. Pounds complains he has been prejudiced by his incarceration during the elongated period between conviction and sentencing. After his conviction for murder of the first degree, Pounds was subject to a mandatory sentence of life imprisonment on that charge as prescribed by statute. Although a defendant is generally not released on bail after conviction of such an offense, where, as here, there has been an unreasonable delay in the disposition of post-verdict motions, it is within the discretion of the judge to allow bail. Pa.R.Crim.P. 4010(A)(1). However, as noted, Pounds did not petition for release on bail, and his incarceration during that period, thus, cannot be considered prejudice resulting from the delay in the post-verdict proceedings.

Pounds also claims prejudice by virtue of the resulting delay in the consideration of his appeal. However, that is...