Commonwealth v. Ryan

384 A.2d 1243, 253 Pa. Super. 92, 1978 Pa. Super. LEXIS 2787
CourtSuperior Court of Pennsylvania
DecidedApril 13, 1978
Docket2061
StatusPublished
Cited by39 cases

This text of 384 A.2d 1243 (Commonwealth v. Ryan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ryan, 384 A.2d 1243, 253 Pa. Super. 92, 1978 Pa. Super. LEXIS 2787 (Pa. Ct. App. 1978).

Opinions

JACOBS, President Judge:

This appeal arises from sentences imposed on appellant following jury verdicts finding him guilty of assault and battery, aggravated assault and battery, and two counts of aggravated robbery. Four issues have been preserved for review: lengthy delay in bringing appellant to trial; refusal to suppress identification of appellant; refusal to permit impeachment of a Commonwealth witness by use of prior inconsistent statements; and admission of evidence of appellant’s prior criminal activities. For the reasons that follow, we affirm the judgment of the lower court.

A. SPEEDY TRIAL

On November 27, 1972, appellant and another were arrested for robbery of two gas stations. During the investigation of these charges, evidence was discovered linking the suspects to two prior robberies, on November 23, 1972, and they were charged with those offenses. At a preliminary hearing held December 22, 1972, the prior robberies were severed at appellant’s request, and the two defendants were tried for the gas station robberies. The prior trial concluded on May 17, 1973, at which time appellant request[96]*96ed that the remaining charges be held in abeyance pending appointment of counsel for his co-defendant. Counsel was not appointed until March 11, 1975, but on December 13, 1974, appellant moved to dismiss the indictments against him on the basis that his right to a speedy trial had been violated. The court denied this motion on January 31, 1975, and the case was continued at that time, and a suppression hearing held on April 17, 1975. The motion to suppress was denied, and on April 21, 1975, trial was held before the court below and a jury. Appellant was found guilty, post-verdict motions were denied, and sentence was imposed.

Since appellant’s arrest antedates Pa.R.Crim.P. 1100, we must evaluate his speedy trial claim within the framework of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, adopted by our Supreme Court in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), the factors to be balanced in determining whether a particular defendant’s right to a speedy trial has been denied were delineated as follows: length of the delay; reason for the delay; defendant’s assertion of his right; and prejudice to the defendant.

Length of the delay, if sufficient, is a triggering mechanism requiring inquiry into the other factors comprising the balance. The 29-month period here while not requiring dismissal is sufficient to justify consideration of the remaining factors. See Commonwealth v. Coffey, 230 Pa.Super. 49, 331 A.2d 829 (1974) (25-month delay).

The second factor, the reason for the delay, requires close scrutiny. Initially, we note that appellant is responsible for six months of the delay from the time of arrest to the conclusion of the prior trial, as the result of his request that two of the charges be severed. Additionally, in May, 1973, appellant requested that the present charges be held in abeyance pending appointment of new counsel for his co-defendant. Original co-defense counsel did not withdraw until March 11, 1975, at which time new counsel was appointed. While most of this period of delay could arguably be attributable to appellant, we regard it at most as a neutral cause [97]*97of delay. See Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. 2182. Finally, from the time appellant moved to dismiss the indictments until trial was held, less than four months elapsed. Even if we were to conclude that the Commonwealth is responsible for this last delay, we would not hold the delay unreasonable on this basis alone, particularly in light of the facts that the Commonwealth was prepared to try all four robberies in May, 1973, and there is no evidence that any of the delay was a tactic on the part of the prosecution to prejudice appellant’s defense. See Commonwealth v. Coffey, 230 Pa.Super. 49, 54, 331 A.2d 829 (1974).

The third part of the balance is the defendant’s failure to promptly assert his right to a speedy trial. Appellant here failed to assert his rights for 25 months, and although he made two requests to dismiss the pending indictments against him, we note that he at no time requested that he be brought to trial. This factor weighs heavily against appellant in light of the fact he has some responsibility to assert a speedy trial claim, and the fact that “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193.

«The final factor to be weighed in the balance is the prejudice suffered by the defendant as the result of the delay. Appellant asserts here that the prejudice caused by the delay is twofold, in that he was prevented from presenting witnesses to describe the scene of the arrest because of the lapse of time, and he suffered oppressive pretrial incarceration.

At trial, 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. This ruling was a correct statement of the law. See Commonwealth v. DelMarmol, 206 Pa.Super. 512, 519, 214 A.2d 264 (1965). Furthermore, we are not persuaded that appellant’s defense was impaired by the delay in this case, in light of [98]*98the fact that the same rule of evidence would apply to any ordinary delay between arrest and trial. In essence, causation between the delay in this case and the alleged impairment of appellant’s defense has not been proved.

Appellant raises the additional claim of prejudice in his assertion that he suffered undue and oppressive pretrial incarceration, and irretrievably lost the opportunity for an earlier parole. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). We agree with the trial court that appellant suffered no undue anxiety or oppression as the result of the delay in this trial, considering the fact that appellant was not to begin his prior sentence for the gas station robberies until he served a prior sentence of four to six years on still another charge. In addition, we regard any possible prejudice suffered by appellant in this respect to be minimal. See Commonwealth v. Bailey, 463 Pa. 354, 344 A. 2d 869 (1975).

Although there was a relatively lengthy delay in this case, we are persuaded that much of it was either caused by appellant or the result of a neutral cause. Moreover, appellant failed to assert his rights for 25 of the 29-month period, and failed to demonstrate more than minimal prejudice resulting from the delay. Consequently, we hold that appellant was not deprived of his constitutional right to a speedy trial.

B. SUPPRESSION OF IDENTIFICATION

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Bluebook (online)
384 A.2d 1243, 253 Pa. Super. 92, 1978 Pa. Super. LEXIS 2787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ryan-pasuperct-1978.