Commonwealth v. Ryan

SPAETH, Judge,

dissenting:

I think appellant was denied a speedy trial.

1

Appellant’s request for severance did not preclude the Commonwealth from listing this case for trial shortly after the conclusion of the trial of the other case in May, 1973. Instead the Commonwealth did nothing for almost two years, finally listing this case for trial in March, 1975.

The majority says: “While most of this period of delay [the almost two years] could arguably be attributable to appellant, we regard it at most as a neutral cause of delay.” at 96-97. “[N]eutral” causes of delay are not “neutral” in the sense of weighing neither against the government nor against the defendant; they weigh against the government. Thus in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), the Court said:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, dif *111 ferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. [Footnote omitted.] A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Id. at 531 , 92 S.Ct. at 2192 .

Neither do I agree that “most of . [the] delay could arguably be attributable to appellant.” Either appellant’s request that new counsel be appointed for the co-defendant was warranted or unwarranted. The majority does not suggest that the request was unwarranted. Given a warranted request, it was the government’s responsibility to see to it that it was granted, and granted reasonably promptly. I do not understand what support the majority finds in the fact that “[o]riginal co-defense counsel did not withdraw until March 11, 1975.” at 96. Why, then, did not the Commonwealth proceed to trial at once, shortly after the first trial in May, 1973? If the answer is that the Commonwealth did not think original co-defense counsel belonged on the case, why, then, was not new counsel appointed, as appellant had requested? However these questions are answered, the conclusion is that the delay, whether characterized as “neutral” or not, was attributable only to the Commonwealth, and must be weighed against it.

2

The majority says that appellant was not prejudiced by the delay, at 97. I can only say that the majority’s own statement of the case leads me to the opposite conclusion. As the majority acknowledges, “appellant attempted to present witnesses to describe the scene of the arrest, and the court refused to admit their testimony, holding that any attempt to describe the area as it presently exists is irrelevant if it does not coincide with the description at the time of arrest.” Id. Precisely: Because of the delay, appellant was precluded from presenting witnesses.

*112 In Barker v. Wingo, supra, the Court considered just this situation. After identifying the various ways a defendant might be prejudiced by having to wait for his trial, the Court said that the “most serious” was “the possibility that the defense will be impaired.” Id. at 532 , 92 S.Ct. at 2193 . The Court continued:

[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown. Id.

The majority says, however, that it is “not persuaded” that appellant’s witnesses would have been allowed to testify had there been only an “ordinary delay between arrest and trial.” at 97-98. Why the majority is not persuaded, it does not say. In most cases where there has only been ordinary delay witnesses are allowed to testify; it is only in cases of extended delay, such as this one, where they may not be.

3

Finally, the majority says that “[ajppellant here failed to assert his rights for 25 months . . . .” at 97. I submit, this is not an accurate statement.

I assume the majority computes the 25 months by counting from November 27, 1972, when appellant was arrested, to December 13, 1974, when he moved to dismiss the indictments on the ground of denial of speedy trial. The trial on the first of the two severed cases was held in May, 1973. It cannot be maintained that during the 5 or 6 months from December, 1972, to May, 1973, appellant “failed to assert” his right to a speedy trial; he was getting a speedy trial. Thus, the majority’s 25 months must be reduced to 19 or 20 months.

Nor can even this period of 19 or 20 months be all counted against appellant. As has been discussed, it was the Com *113 monwealth’s obligation to move the case to trial. Consequently, appellant was entitled to assume, for at least some period of time, that the Commonwealth was doing what it was supposed to do. Opinions will differ. For myself, I should be unwilling to hold it against a defendant that he waited 6 months, perhaps even 9, before he wondered when his case would come to trial, and started to press for trial. Thus of the 25 months delay, I should weigh against appellant only about 10 to 12 months. Surely it is not fair to weigh all of it against him as the majority does.

The judgment of sentence should be vacated, and appellant discharged.

HOFFMAN, J., joins in this opinion as well as filing a separate dissenting opinion.