Commonwealth v. Pearson
| Decision Date | 23 September 1974 |
| Citation | 230 Pa.Super. 304,327 A.2d 167 |
| Parties | COMMONWEALTH of Pennsylvania v. Oscar Ewing PEARSON, Appellant. |
| Court | Pennsylvania Superior Court |
Vincent J. Ziccardi, Defender, John W. Packel Chief, Appeals Div., Philadelphia, for appellant.
David Richman, Asst. Dist. Atty., Chief, Appeals Div Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
This appeal is from a denial of a petition for post-conviction relief without an evidentiary hearing.
On May 7 1965, the appellant Oscar Pearson was convicted on eleven bills of indictment each charging him with aggravated robbery. Although sentence was suspended on three of the bills, appellant received consecutive sentences of five to ten years on the remaining eight bills. Appellant appealed to this Court and we affirmed the judgments of sentence. The Supreme Court of Pennsylvania granted allocatur and subsequently reversed the judgments and ordered a new trial. Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967). A retrial resulted in convictions on only five of the original bills of indictment, on which appellant received prison terms of two to four years consecutively. Appellant's appeal to our Court was once again affirmed per curiam. Our Supreme Court granted allocatur.
In a 4--3 decision, [1] the Supreme Court rejected appellant's argument that he was denied his right to a speedy trial. The Court pointed out that the appellant had failed to demonstrate any prejudice from the delay. Appellant relied on the fact that the length of the delay was sufficient to establish a violation of his constitutional rights in light of the Court's opinion in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).
In Hamilton our Supreme Court declared that it would ask that the Criminal Procedural Rules Committee fashion a new Rule setting a time limit in which cases could be brought to trial, the violation of which would result in an immediate dismissal if the delay were not caused by the defendant himself. [2] Recognizing that the new Rule was more a matter of procedural necessity for fairness, rather than a constitutional mandate, the Court held that a Per se violation of the time limitations would be held to exist only in cases coming to trial after its decision in Hamilton.
Although appellant's appeal was filed after Hamilton, the Court, as it has in a series of cases following Hamilton, held that a showing of prejudice was a requirement to a dismissal of a criminal indictment in all cases tried before its decision. See, e.g., Commonwealth v. Jones, 450 Pa. 422, 299 A.2d 288 (1973). Relying on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court held that all such earlier cases would require a case-by-case 'analysis of the circumstances and a consideration of the rights of society, as well as those of the accused, to be protected from undue and oppressive pretrial incarceration.' 450 Pa. at 472, 303 A.2d at 483.
The Pennsylvania Supreme Court, therefore, affirmed appellant's convictions on the basis of his failure to demonstrate any prejudice from the delay, but reversed the conviction on Bill 774 because the increase in sentence on retrial (from suspended sentence to term of imprisonment of two to four years) was constitutionally impermissible. 450 Pa. at 475, 299 A.2d 288.
On June 18, 1973, appellant filed a postconviction petition alleging that a decision of the United States Supreme Court had recognized a broader right of the accused in protection under the Sixth Amendment's guarantee of a speedy trial. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). Strunk, appellant submits, enunciates the proposition that prejudice results from the delay itself and the defendant need not show independent prejudice resulting from the unlawful delay. Such a holding, appellant argues, overrules previous cases in Pennsylvania requiring the defendant to assume such a burden of proof, and therefore, a new constitutional standard has been recognized and must be given retrospective application.
We agree that if Strunk actually declared a stronger constitutional protection for the accused under the Sixth Amendment, appellant may obtain relief under the Post-Conviction Hearing Act, despite having raised and litigated this same issue throughout the previous legal proceedings up to this Commonwealth's Supreme Court. 19 P.S. 1180--3(c)(12) provides a petitioner a basis for relief:
'The abridgement in any other way of any right guaranteed by the constitution or laws of this State or the constitution or laws of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right.' The law of Pennsylvania is clear that even though direct appeals have been exhausted, Commonwealth v. Smith, 449 Pa. 309, 314, 297 A.2d 810, 813 (1972).
We have reviewed the Strunk case and do not find any clear expression by the Supreme Court of the United States that removes or shifts the burden of proof with respect to the requirement of showing prejudice from the delay. The sole issue before the Court in Strunk was whether the Court of Appeals erred in the remedy it chose to apply to a denial of this constitutional right to a speedy trial. In the District Court, appellant had been unsuccessful in his argument that he had been denied his right to a speedy trial. The Court of Appeals disagreed, and remanded the case 'to reduce petitioner's sentence to the extent of the 259 days in order to compensate for the unnecessary delay which had occurred between return of the indictment and petitioner's arraignment.' Strunk, supra 93 S.Ct. at 2261. The Supreme Court held that this had been an inappropriate remedy, saying that if there has been a violation of petitioner's right to a speedy trial, 'dismissal (of the indictment) must remain, as Barker noted, 'the only possible remedy." 93 U.S. at 2263.
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