Com. v. Reese

• Decision Date: 01 December 1975
• Citation: 237 Pa.Super. 326,352 A.2d 143
• Parties: COMMONWEALTH of Pennsylvania v. Donald Lakey REESE, Appellant.
• Court: Pennsylvania Superior Court

Page 143

352 A.2d 143

237 Pa.Super. 326

COMMONWEALTH of Pennsylvania v. Donald Lakey REESE, Appellant.

Superior Court of Pennsylvania.

Dec. 1, 1975.

Petition for Allowance of Appeal Denied April 12, 1976.

Calvin S. Drayer, Jr., Asst. Public Defendant, Norristown, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

On December 2, 1973, at approximately 1:30 P.M., appellant was in the exercise yard of Montgomery County Prison, where he was temporarily confined awaiting disposition of charges unrelated to the instant case. At that time appellant accosted a fellow inmate, stabbing him 9 or 10 times in the chest with a sharp instrument. Appellant was indicted, tried by a jury, and convicted of simple and aggravated assault, assault by a prisoner and attempted murder. Post-verdict motions were denied and appellant was sentenced to an aggregate of 8 to 20 years imprisonment. Appellant now appeals to this court.

Initially appellant contends that the lower court erred in failing to grant his motion to dismiss on the basis that appellant was denied his right to a speedy trial, as required by Pa.R.Crim.P., Rule 1100. Rule 1100(a)(1) provides that cases in which complaints are filed between June 30, 1973 and July 1, 1974 must be brought to trial within 270 days. In this case the complaint was filed on December 3, 1973 and appellant was brought to trial on January 14, 1975, 408 days later. The 270 day period is not, however, inflexible, in that extensions are explicitly provided for in the statute itself. Rule 1100(d)(1) provides that '(i)n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: . . . the unavailability of the defendant or his attorney.' Therefore in the instant case we must determine whether the unavailability of the defendant or his attorney accounted for the 138 day delay beyond the 270 day period provided for bringing appellant to trial.

The first such delay to be considered is a 118 day period between March 5, 1974 and July 2, 1974 during which time proceedings were conducted to determine whether appellant was competent to stand trial. That issue was raised when Dr. Robert C. Bowman, the attending psychiatrist at Western State Penitentiary, petitioned the court pursuant to Section 408(b) of Mental Health and Mental Retardation Act of 1966 ¹ to examine and evaluate appellant. As a result, the Commonwealth petitioned the court to appoint a Sanity Commission and on March 5, 1974, such a commission was appointed. On July 2, 1974 the commission determined appellant was competent to stand trial.

It is obvious, for several reasons, that this 118 day period must be excluded pursuant to Rule 1100(d)(1) from determination of the period for commencement of trial. The law is clear that conviction of a legally incompetent accused violates due process. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1965); Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973); and Commonwealth v. Smith, 227 Pa.Super. 355, 324 A.2d 483 (1974). Further, one who is legally incompetent cannot be indicted. See Commonwealth v. Kohr, 228 Pa.Super. 195, 200--201, 323 A.2d 79 (1974). Therefore, until obtaining the result of the Sanity Commission, there was no choice but to delay both trial and indictment. This delay must be attributed to the unavailability of appellant and therefore excluded from the period for commencement of trial pursuant to Rule 1100(d)(1). See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258, 264 (1974). This conclusion is in accord with the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Section 3.2(a). It should be further noted that appellant's attorney not only failed to object to the appointment of the Sanity Commission but he in fact joined in the Commonwealth's petition for the appointment of such commission. After such action he cannot now reasonably object to the delay caused by the commission's proceedings.

The second delay to be considered is a 51 day delay which the lower court held to be attributable to the unavailability of defendant's counsel. Appellant was scheduled to go to trial on November 24, 1974. However on November 15, 1974 it was realized that appellant's counsel was already scheduled to try a complex criminal case during the last week of November. Therefore the court, on its own motion, rescheduled appellant's trial for January 14, 1975. Appellant did not object to this rescheduling until January 3, 1975, after the 270 day period and 118 day period had run. At that time appellant made a motion to dismiss on the ground that, as it turned out, he was available the last week in November and therefore the 51 day delay, November 15, 1974 to January 14, 1975, could not be attributed to his unavailability. The question which comes to mind is why did appellant's counsel wait until January 3, 1975 to inform the court that he was available the last week in November. If he was, in fact, available the last week in November, and if he did, in fact, want to go to trial on November 24, 1974 he could have simply made the court aware of these facts on November 15, 1974, when the rescheduling occurred. His failure to do so precludes his objection to the 51 day delay he subsequently made on January 3, 1975. Accordingly we hold that the 51 day delay was attributable to the unavailability of appellant's attorney. When this 51 day delay is coupled with the 118 day delay attributable to the unavailability of appellant and both are subtracted from the 408 day period, the trial was timely commenced according to Rule 1100.

Appellant's second contention is that he was denied a fair trial because the Commonwealth failed to produce certain witnesses which he requested. This contention is without merit for several reasons. First, appellant knew on November 15, 1974 that his trial was scheduled for January 14, 1975. This gave him two months to secure the witnesses needed at trial. Instead, appellant chose to wait until January 9, 1975 to request two witnesses; until January 10, 1975 to request two more witnesses; and until January 17, 1975 to request three more witnesses. The fact that only two out of the seven witnesses were produced is not surprising; however, it is clearly not the fault of the Commonwealth. As this court stated in Commonwealth v. Miranda, 222 Pa.Super. 158, 162, 292 A.2d 473, 475 (1972): 'A defendant cannot idly delay until the date set for trial and then request compulsory process to secure witnesses in his favor.' See also Commonwealth ex rel. Jennings v. Maroney, 179 Pa.Super. 571, 118 A.2d 287 (1955). Furthermore, there is a procedural matter which also negates appellant's contention. Knowing that his witnesses were not present at trial, appellant neither moved for a continuance nor a mistrial. Instead he proceeded with trial without objection. This clearly constitutes a waiver of such issue. As our Supreme Court recently stated in Commonwealth v. Bronaugh, 459 Pa. 634, 636, 331 A.2d 171, 172 (1975), 'We have held that issues not preserved at each stage of review by a specific allegation of error, are waived and subsequently cannot be raised in an appeal to the Court.'

Appellant's third contention concerns a newspaper article, the existence of which appellant claims entitles him to a new trial. The article, which appeared on January 15, 1975, published an account of the trial proceedings and made several statements which would have been prejudicial to the appellant if seen by members of the jury. Upon learning of the article in question the trial court asked the jury if any of them had seen the article. One juror admitted to having seen the caption of an article bearing appellant's name, but realizing that the article dealt with appellant's case, he put it down and did not read it. However, there were two jurors who admitted reading the article, and they were removed as jurors in the case on appellant's motion. The court then installed two previously selected alternative jurors in their place and continued with the trial. We can conclude, therefore, that the article was not read by any of the jurors who found appellant guilty. Nevertheless, appellant contends the newspaper article denied him a fair trial. Appellant shows no prejudice but claims instead that the publicity was so inherently prejudicial that he need not show a nexus between the publicity and actual jury prejudice. See Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973) and Commonwealth v. Palmer, 225 Pa.Super. 370, 310 A.2d 360 (1973). We find that the single newspaper article does not even begin to approach the cases where media accounts are so persuasive as to be inherently prejudicial. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1969); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); and Commonwealth v. Pierce, supra.

Appellant's fourth contention is that the trial court committed error in failing to instruct the jury as to the various degrees of homicide in connection with the attempted murder charge. Here, however, appellant was not charged with homicide but,...