Commonwealth v. Wagner , 221 Pa. Super. 50 ( 1972 )

Opinion by

Cercone, J.,

This appeal involves the right of a federal prisoner to a speedy trial on untried state charges pending against him. The facts show that on February 2, 1970, the Grand Jury of Somerset County approved an indictment against the appellant, David Wagner, for the crime of larceny, arising out of the theft of a motor vehicle in late 1969. Trial was scheduled on this charge for February 24, 1970, but before this date appellant breached his bond and fled to Alabama. He was picked up in that state as a federal parole violator and subsequently returned to Pennsylvania on April 1,1970 for incarceration in the United States Penitentiary at Lewisburg. On the date of his return to this state, the Somerset County District Attorney filed process with the federal penitentiary to serve as a detainer.

The appellant, under date of April 17, 1970, wrote letters to the District Attorney and the court in Somerset County asking that the larceny charge then pending against him be dropped and the detainer quashed or, in the alternative, that he be given speedy trial on the charge. The District Attorney responded on May 5, 1970 and advised Wagner that the charges would not be dropped and that he did not intend to bring the case to trial until after the appellant’s scheduled release from the penitentiary in 1971. The District Attorney informed appellant to consult his court-appointed attorney or the warden concerning the correct procedure to be followed. On May 27, 1970 Wagner filed a motion for speedy trial and the lower court, on June 1, 1970, entered an order directing that the case be listed for trial at the September Term, 1970, that being the next term of court. The September Term jury trials commenced in Somerset County October 13, 1970 and concluded about October 27, 1970.

On October 26, 1970, Wagner came before the court on the larceny charge. At this time, his counsel orally moved to quash the indictment on the ground that there had been a denial of the right to a speedy trial. Wagner argued below, as he argues in our court, that the delay in bringing him to trial required a reversal under the Act of June 28, 1957, P. L. 428 (19 P.S. §881 et seq.), our so-called “180-day rule”. This rule requires the trial of untried indictments against prisoners within 180 days after proper request for such disposition is made by the prisoner involved. The record shows that trial was not held in the instant case until 192 days after Wagner first wrote to the court and District Attorney requesting to be tried on the indictment then outstanding. The lower court denied his motion and Wagner was told he would be afforded a jury trial the next day. Wagner decided to plead guilty to the charge, but specifically reserved the right to appeal on the speedy trial issue.

In analyzing this appeal, we must initially look to the Act of June 28, 1957 to determine whether it applies to the instant fact situation. An examination of the Act reveals that it does not. In Section 1(a) of the Act (19 P.S. §881) the first sentence provides: “Whenever any person has entered upon any term of imprisonment in any state, county, or municipal penal or correctional institution of this Commonwealth. . .”. [emphasis supplied] The appellant was an inmate of a federal correctional institution, and under the express language of the statute, was ineligible to proceed under its provisions. Furthermore, the Act clearly details the procedure an applicant must follow in submitting the request for disposition of untried indictments. Explained simply, the prisoner must submit his request through the warden, superintendent or other corrections authority having custody over him. Such official must then forward this request, accompanied by other documents, as specified in the Act, to the proper local District Attorney and court. Such procedure was not followed by appellant herein; he merely sent informal letters directly to the court and District Attorney stating his request. Even if he were eligible to seek the application of the Act, appellant could not ignore the procedure required. Cf. Commonwealth v. Williams, 10 Lebanon 420 (1965) and Commonwealth v. Udelson, 10 Chester 541 (1961).

Next, although the appellant has not raised any argument based upon the Act of September 8, 1959, P. L. 829, 19 P.S. 1431 et seq. (Agreement on Detainers), a full examination of his right to speedy trial requires reference to that statute. The pertinent provision of that statute reads as follows: “Article 3. (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against a prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint. . .”. This section is analogous to Section 881; however 1431 applies to inmates held in other jurisdictions. Section 1431 requires that the incarcerating jurisdiction have a complementary statute before the section, can become applicable. Commonwealth v. Bressler, 194 Pa. Superior Ct. 208, 166 A. 2d 549 (1960), cert. denied, 366 U.S. 932, 81 S. Ct. 1655. At the time of the appellant’s request for trial, the federal government did not have such a statute.¹ Appellant argues that to draw a distinction between inmates imprisoned in Pennsylvania and jurisdictions having complementary legislation and those imprisoned in noncomplementary legislation jurisdictions is violative of the equal protection guarantee of the Fourteenth Amendment. Though we acknowledge that the decision in Commonwealth v. Banter, 445 Pa. 413, 282 A. 2d 705 (1971), is not a precedent for the application of the rule of stare decisis, having been participated in by two justices (with a third concurring), we nevertheless do agree with the reasoning therein set forth by Justice Eagen relative to the issue here involved: “The salient point of this argument is that despite the fact that the United States has not signed this interstate compact, the equal protection clause of the Fourteenth Amendment requires that Pennsylvania not discriminate in terms of granting a speedy trial between persons extradited from states that are signatories and prisoners coming from nonsignatory jurisdictions. This argument must fail for several reasons. It is certainly true that Pennsylvania cannot deny to any person whom it has charged with committing a crime the right to a speedy trial. But with regard to prisoners extradited from certain states with which it has entered into prior agreement, the Commonwealth will accord the right to a speedy trial in a particularized manner, namely by following the provisions of the detainer act. Hence, 19 P.S. §1431 et seq., is ancillary to the right of a speedy trial and not a substitution for it. Since the federal government is not a party to the interstate compact, the appellant is not entitled to the benefit of the provisions of the Pennsylvania act.” One could reasonably conclude upon the reading of the Bunter case that this statute, Section 1431, providing for a 180-day period “does not create a constitutional rule of thumb which measures the time boundary for a speedy trial. . . .² The equal protection argument would have merit only if it could be shown that the Commonwealth was discriminating purposefully or intentionally between those whom it had charged with crime, granting to some a speedy trial while denying it to others.. The Sixth Amendment is a guarantee to all who stand accused of crime. However, the Commonwealth is free to adopt various methods of implementing this right including a comity arrangement with sister states as a method of trying fugitives. And hence while it cannot be gainsaid that an accused must have a speedy trial regardless of such comity arrangements, it does not follow that there has been purposeful discrimination because such a trial is not provided under the terms of the interstate compact.” Bunter, supra, p. 422-23. Here, it must be borne in mind that it is the availability of the statutory 180-day period which immediately is at issue, and not the Sixth Amendment right to a speedy trial. Since Section 1431 is not applicable, appellant cannot rely on the 180-day provision.

Although appellant has not satisfied the requirements of the “180-day rule” under either statute (19 P.S. §881 or 19 P.S. §1431), he was certainly entitled to a speedy trial. Section 9 of Article I of the Pennsylvania Constitution establishes this right in our state. The federal constitutional right to a speedy trial, embodied in the Sixth Amendment, has been held applicable to the states by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Pennsylvania Rule of Criminal Procedure 316 provides that upon application and proof that a defendant has not been brought to trial within a reasonable time after indictment, a court may order dismissal of the prosecution.

The right to speedy trial has been a much litigated issue of late, in both the state and federal courts. The United States Supreme Court, on the heels of the Klopfer decision, supra, decided Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969), and Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). In these cases the court emphasized that a state has a duty to make a diligent effort to gain custody of one serving a prison term in another jurisdiction or in the federal prisons for the purpose of a speedy trial on pending charges. These two decisions were held to be retroactive in Com. v. Ditzler, 443 Pa. 73, 277 A. 2d 336 (1971). Our own Supreme Court recently analyzed the speedy trial problem in Commonwealth v. Clark, 443 Pa. 318, 279 A. 2d 41 (1971), and in Commonwealth v. Werner, 444 Pa. 458 (1971), where it held that though criminal defendants have a right to a speedy trial, “the mere fact that there is a lapse of what appears to be too long a period before trial does not entitle a criminal defendant to discharge unless he was prejudiced as a result of the delay or suffered adverse consequences.”

David Wagner was entitled to a speedy trial on the untried Somerset County indictment and the District Attorney therefore had a duty to bring him to trial quickly when appellant requested such disposition. A review of the facts presented clearly indicates that the Somerset County District Attorney carried out his duty and that Wagner had the speedy trial to which he was entitled. The appellant first forwarded his request to be tried to authorities on April 17, 1970, a little over two weeks after he had been returned from Alabama to Lewisburg Federal Prison. This was followed by a formal motion for speedy trial on May 27, 1970. Jury trials in the May Term of the Somerset County courts commenced on May 18, 1970 and concluded about May 27, 1970. Neither the constitutional mandates for speedy trial nor the established case law requires authorities in this situation to obtain the presence of an accused from another authority’s prison system, fit his case into an already established court calendar, prepare for trial, and try him within such a short time after his initial request.

The Somerset County court on June 1, 1970 entered an order directing that the instant case be listed for trial at the very next term of court, the September Term, 1970, which was when the trial in fact took place. It would be desirable if all such cases could be handled by our overburdened courts and District Attorneys with such dispatch.³

It would be pertinent to note that our 180-day rule (19 P.S. §881) was intended to set a limit on the time within which a prisoner in a Pennsylvania state, county, or municipal correctional institution must he brought to trial, after proper demand, on untried .indictments. The 180-day standard was not intended and cannot be used as a strict yardstick to determine the timeliness of trial in every case involving defendants incarcerated in institutions in other states or in the federal system.

We have held that the right to a speedy trial “. . . is necessarily relative. It is consistent with delays and depends upon circumstances” Commonwealth v. Gant, 213 Pa. Superior Ct. 427, 431, 249 A. 2d 845, 847 (1968) (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950 (1905)). The 192 day delay was certainly reasonable in the fact situation presented in the instant case. The appellant’s argument that he was denied a speedy trial lacks merit and must be dismissed.

Affirmed.

1 Since then, however, such a statute has been enacted, 18 U.S.C. App. (1970) (effective March 9, 1971).

2 Justice Eagen, at this point, was making specific reference to the 120-day period also contained in 19 P.S. §1431. It is submitted, however, that this statement has equal application to the 180-day period as well.

3 It is interesting that appellant, who now complains of a denial of speedy trial, was originally scheduled to be tried on this charge on February 24, 1970, 22 days after the date of his indictment. Had he not fled to Alabama and breached both his federal parole and his bond on the state larceny charge, the issue now on appeal would have never arisen.