Commonwealth v. Roundtree, Appellant.
Supreme Court of Pennsylvania
October 16, 1974
458 Pa. 351 | 326 A.2d 285
Under the terms of the contract and section 301 (18) of Act 195, the Board was obligated to the Federation to withhold the dues of members who failed to revoke their authorization between August 17, 1972 and August 31, 1972, the period provided under the contract and the Act. Because of the bargained-for retroactivity clause, the Board‘s duties under the checkoff provision must be considered to be unаffected by the hiatus between September 1, 1972, and March 1, 1973. The Board‘s obligation continued just as if the contract had been signed on August 31, and had become effective on September 1. Any revocation of authorization tendered after the contractual and statutory withdrawal dates cannot alter the Federation‘s and the Board‘s rights and obligations under the contracts.
I would affirm the decision of the chancellor.
Mr. Justice NIX and Mr. Justice MANDERINO join in this dissenting opinion.
Robert S. Robbins, for appellant.
David Richman, Assistant District Attorney, with him Clifford Haines and James J. Ranney, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE POMEROY, October 16, 1974:
On February 28, 1973, appellant was convicted in a nonjury trial of second degree murder for the stabbing
On the night of the murder, witnesses had observed the appellant and another man assaulting Davis, following an incident in a bar. Roundtree was arrested at the scene. A preliminary hearing was held later in November, 1966, and appellant was indicted for murder in December, 1966. An arraignment scheduled Mаrch 1, 1967 was aborted when appellant failed to appear; a bench warrant which was issued for him was lifted in mid-March. Whether a formal arraignment was ever held is unclear,2 but it does appear that at some point appellant was freed on bail, and remained free throughout the periоd preceding trial.
There apparently was no action in the case until 1970, when it was listed for trial, but then continued. No further action was taken in the cаse until the fall of 1972, when the appellant was arrested on an unrelated charge. A routine records check divulged that there was an untried homicidе charge pending against him.
At the hearing on the post-trial motions, it was ascertained that while appellant had been represented by counsel at least through the preliminary hearing, he had no counsel from the spring of 1967 until October, 1972, when the court appointed his present counsel. Trial was sеt for December, 1972, but was continued
The sole question raised on this appeal is whether, as appellant contends, he was denied his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.3 Although the delay of over six years between arrest and trial would ordinarily act as a “triggering mechanism” to a further inquiry to determine whether appellant had been denied his right to a sрeedy trial, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), we need not make that further inquiry in this case, since we hold that appellant has waived his right to a speedy trial.
In Pennsylvania, the propеr procedure for objecting to the length of delay in being brought to trial is a motion to quash the indictment. Commonwealth v. Gates, 429 Pa. 453, 455, 240 A.2d 815 (1968); Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 503, 187 A.2d 278 (1963);4 Commonwealth v. Smihal, 182 Pa. Superior Ct. 232, 236, 126 A.2d 523 (1956). Failure to properly object constitutes а waiver of the right to a speedy trial. Gates, supra; Commonwealth ex rel. DeMoss v. Cavell, 423 Pa. 597, 601, 225 A.2d 673 (1967);
Our decision today, of course, in no way condones the inordinate delay which occurred in bringing this appellant to trial. This Court‘s concern about such delays, and the steрs recently taken to end them, are well known. See Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972);
Judgment affirmed.
Mr. Justice EAGEN and Mr. Justice NIX concur in the result.
CONCURRING OPINION BY MR. JUSTICE ROBERTS:
Appellant‘s speedy trial claim was not raised in the trial court until post-trial motions. Since thе question was not timely raised, it may not be considered on appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741, 743 (1972).
To the extent the majority intimates that a motion to quash is the exclusive meаns of raising a speedy trial claim, I cannot agree. While this claim must be raised before the trial is commenced,* it may also be presented via some other procedural device. For example, in Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 187 A.2d 278 (1963), the defendant moved to nolle pros the indictment for failure to afford a speedy triаl. This Court reversed the judgment of sentence and discharged the appellant, Mr. Justice EAGEN writing for a unanimous court: “Undoubtedly, the proper legal motion shоuld have been to quash the indictment. However, the law is not so rigid as to base a deprivation of constitutional prerogatives upon a
I concur in the result.