Commonwealth v. Pounds
Commonwealth v. Pounds
Opinion of the Court
OPINION OF THE COURT
On July 9, 1976, a jury found Gary Pounds guilty of murder of the first degree, possession of an unlicensed firearm, crime with a firearm, two counts of theft, and one count of receiving stolen property. Post-verdict motions were denied on June 9, 1978, and, on June 27, 1978, Pounds was sentenced to life imprisonment on the murder conviction. Sentence was suspended on the other offenses. This appeal is from the judgment imposed on the murder conviction.
The trial record discloses the following:
At 1:28 a. m. on July 24, 1975, the body of Joe McGuane, Pound’s father-in-law, was found at Gregg Station where he was employed as an oil tank gauger and truck driver. The cause of death was later determined to be multiple gunshot wounds of the head, face, neck, and hands. Analysis of bullet fragments removed from the body indicated the bullets had come from a revolver of .32 or larger calibre. The victim was last seen alive at 6 a. m. on July 23, 1975 and several phone calls to the victim from his supervisor made between 7 and 8 a. m. had gone unanswered.
Ann McGuane, the victim’s wife, testified that she was awakened on July 23, 1975 at approximately 6:30 a. m. by
Gary Pounds was arrested on the evening of July 24, 1975 at which time a .38 special revolver was found in the car he was driving. The revolver had been stolen from a trailer owned by Dan Leonard.
Beverly Herrick, a friend of Pounds, testified that Pounds had come to a motel where she resided at approximately 10:30 a. m. on July 23,1975; that he asked her to follow him in her automobile to a strip mine so he could dispose of the automobile he was driving (later determined to have been the victim’s, Joe McGuane’s) for a friend in order to collect the insurance; that, after disposing of the McGuane vehicle, the two retrieved Pounds’ automobile from behind a culm pile in the vicinity of Gregg Station; and, that they dropped Pounds’ automobile off at a local shopping mart. Herrick also testified Pounds had told her he had killed his father-in-law.
Jerome Harris, an inmate of the jail in which Pounds was originally incarcerated, testified Pounds had told him he, Pounds, had shot Joe McGuane some time between 6 and 7 a. m. on July 23, 1975 after an argument.
Testifying in his own behalf, Pounds denied shooting Joe McGuane, disposing of his automobile, having been at the
Initially, Pounds contends the trial court erred in denying his motion to dismiss based on a claimed violation of his right to a speedy trial due to a delay of nearly two years between the jury’s verdict and his sentencing. Although in dicta in the opinion announcing the decision of the court in Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 219, 82 A.2d 244, 248 (1951), Mr. Justice Charles Alvin Jones stated: “The suggestion that the constitutional right of an accused to a speedy trial requires that he be sentenced timely is, of course, true,” our Court has not expressly held that sentencing is part of trial for Sixth Amendment purposes or for purposes of Article I, § 9 of the Pennsylvania Constitution.
In the present case, the jury returned its verdict on July 9, 1976, and Pounds was sentenced on June 27,1978, a delay of almost two years. This period of delay did not extend beyond the collective maximum term of imprisonment for
The second factor to be considered is the reason for the delay. Here, the record shows that Pounds’ post-verdict motions were filed on July 14,1976, argued May 3,1977, and denied on June 9, 1978; and that he was sentenced 18 days later. Although post-verdict motions are to be disposed of prior to sentencing, see comment to Pa.R.Crim.P. 1405; Commonwealth v. Souder, 376 Pa. 78, 101 A.2d 693 (1954); Commonwealth ex rel. Holly v. Ashe, supra; Commonwealth v. Middleton, 242 Pa.Super. 421, 364 A.2d 342 (1976), that in itself does not justify an inordinate delay in sentencing. The record reveals the 9V2 months between the filing of post-verdict motions and argument on the motions
The next circumstance of importance is whether Pounds asserted his right to be sentenced without unreasonable delay or, more appropriately, requested timely disposition of his post-verdict motions. Although Pounds apparently sent several letters to the court, the substance of these letters does not appear of record and he did not file any formal petition seeking immediate decision on his post-verdict motions or immediate sentencing.
The final factor for our consideration is the prejudice from the delay. Pounds complains he has been prejudiced by his incarceration during the elongated period between conviction and sentencing. After his conviction for murder of the first degree, Pounds was subject to a mandatory sentence of life imprisonment on that charge as prescribed by statute. Although a defendant is generally not released on bail after conviction of such an offense, where, as here, there has been an unreasonable delay in the disposition of post-verdict motions, it is within the discretion of the judge to allow bail. Pa.R.Crim.P. 4010(A)(1). However, as noted, Pounds did not petition for release on bail, and his incarceration during that period, thus, cannot be considered prejudice resulting from the delay in the post-verdict proceedings.
Pounds also claims prejudice by virtue of the resulting delay in the consideration of his appeal. However, that is not the type of interest which the right to a speedy trial protects.
Our review of these circumstances surrounding the delay in sentencing Pounds convinces us that the delay was neither purposeful nor oppressive and that there has been no violation of Pounds’ right to a speedy trial which would presently entitle him to relief.
While we do not condone the delay in the post-verdict proceedings, we are not convinced it mandates a dismissal of the charges. Our decision is influenced, in particular, by the fact that after his conviction, Pounds was, by statute, subject to a mandatory life sentence; that part of the delay was due to Pounds’ failure to pay for a transcript which he was not entitled to have provided without charge; by the caseload confronting the trial court; that there was no formal demand for speedy disposition of post-verdict motions; and, by the lack of identified prejudice to interests of Pounds which a speedy trial right is designed to protect.
We have previously stated:
“[ajlibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.”
Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963). A defendant is entitled to an alibi instruction when evidence of alibi, as defined above, has been introduced. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). Although an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene
The evidence at trial indicated Joe McGuane was killed between 6 and 7 a. m. on July 23, 1975. Pounds testified that, on the night of July 22, 1975, he slept in his car in front of a house trailer owned by Carol and Dan Leonard; that he arose sometime before 8 a. m. on the 23rd, possibly around 6 a. m.,
In Commonwealth v. Bonomo, supra, 396 Pa. at 231-232, 151 A.2d at 446, we stated:
“[where the defendant traverses one of the essential elements necessary for conviction], it will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged.”
See also, Commonwealth v. Van Wright; Pennsylvania Standard Jury Instructions, Criminal, § 3.11. Here, the trial court instructed the jury, inter alia, that a presumption of innocence existed; that the Commonwealth has the burden of proving each element of each offense beyond a reasonable doubt; that a reasonable doubt could arise from the evidence present or lack of evidence; that the defendant does not have the burden of proving his innocence; and, that the jury has a duty to weigh the credibility of the testimony presented. However, the trial court failed to instruct the jury that it should acquit if Pounds’ alibi evidence, even if not wholly believed,
General instructions on the Commonwealth’s burden of proving each element of the offense beyond a reasonable doubt, the absence of a burden of proof on the defendant, and assessing the credibility of witnesses do not adequately protect against this danger. See Commonwealth v. Van Wright, supra; United States v. Burse, supra. Cf. Commonwealth v. Bonomo, supra; United States v. Booz, supra; United States v. Alston, 551 F.2d 315 (D.C.Cir. 1976). Furthermore, by refusing to give the requested instruction, the trial court, in effect, deprived Pounds of a substantive defense. Thus, the trial court erred in refusing to instruct on alibi.
Although there is substantial evidence of guilt on the record, we are unable to conclude the failure to instruct on alibi could not have contributed to the jury’s verdict. The jury was not told it did not have to wholly credit Pounds’ alibi testimony in order for the testimony to create a reasonable doubt of his guilt. Hence, the jury may have convicted merely because it did not believe his alibi testimony. In the absence of an instruction that they did not have to wholly believe Pounds to acquit, the jury may have inferred guilt from his failure to clearly establish his alibi. We are, therefore, unable to find the error harmless and must reverse. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
Judgment reversed, and a new trial is ordered.
. Article I, § 9 of the Pennsylvania Constitution states: “In all criminal prosecutions the accused hath a right to . . .a speedy public trial .
. This approach has been taken by a number of courts. See e.g. Brady v. Superintendent Anne Arundel Co. Det. Ctr., 443 F.2d 799 (4th Cir. 1971); Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970), cert. denied, 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111 (1971);
. Pa.R.Crim.P. 1100 was promulgated by this Court to establish a presumptive standard of time within which a defendant must normally be brought to trial. Since that standard is not applicable to the delay claimed instantly, we revert to the analysis used prior to its adoption.
. In Barker v. Wingo, supra, 407 U.S. at 553, 92 S.Ct. at 2193, the Court further stated:
“We regard none of the four factors identified above as either necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”
See also Commonwealth v. Jones, supra, 450 Pa. at 447, n.4, 299 A.2d at 291, n.4.
. On the murder conviction alone, Pounds faced a mandatory term of life imprisonment.
. Pa.R.Crim.P. 1123(a) directs argument be scheduled and heard promptly after the filing of post-verdict motions.
. Pounds, at that time, was represented by private counsel and his request to have the Commonwealth or county pay for the transcript was denied. Although the judge who presided during Pounds’ trial and post-trial proceedings subsequently arranged for Pounds’ receipt of the transcript, no claim is made that the in forma pauperis petition was improperly denied.
. Unintentional delays caused by overcrowded court dockets are among factors to be weighed less heavily than intentional delay calculated to hamper the defense in determining whether the constitutional right to speedy trial has been violated. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Barker v. Wingo, supra.
. We also note no demand for bail was made pursuant to Pa.R. Crim.P. 4010.
. The interests which have been identified are: (1) prevention of oppressive pretrial incarceration; (2) minimization of an accused’s anxiety and concern; and, (3) limitation of the possibility that the
Further, while we have herein assumed arguendo that the right to a speedy trial protects an accused through the completion of a prosecution in sentencing, see Pollard v. United States, supra, such protection has not been held to extend to appeal. Rheuark v. Shaw, 477 F.Supp. 897 (N.D.Tex. 1979); Colunga v. State, 527 S.W.2d 285 (Tex. Cr.App. 1975); State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1970), cert. denied, 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971); State ex rel. Mastrian v. Tahash, 277 Minn. 309, 152 N.W.2d 786 (1967). See Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) (State not required by Federal Constitution to provide appellate courts or a right to appellate review at all.)
. We note that, within the body of his argument on his speedy trial claim, Pounds also claims his right to due process has been denied due to delay in the consideration of his appeal resulting from the delay in his sentencing and a further lapse of 17 months between the filing of his notice of appeal and the filing of an opinion by the judge presiding at his trial and post-trial proceedings. However, this contention was not set out or suggested by Pounds’ statements of questions involved nor was it adequately developed in the body of his argument. Therefore, we will not consider it. Pa.R.A.P. 2115, 2118. Moreover, were we to consider the issue, the same considerations
. In view of our disposition of this issue, we need not reach or discuss Pounds’ remaining assignments of error: (1) that the trial court deprived him of the opportunity to present a defense by refusing to allow him to treat Ann McGuane and Maureen Pounds as hostile witnesses and by prohibiting questioning concerning Terry McGuane’s parentage and his alleged prior physical abuse of and threats to Ann and Joe McGuane; (2) that the trial court erred in denying his application to sever the indictments for firearm violations and a firearm theft from the indictment for homicide; (3) that the trial court erred in allowing the Commonwealth to introduce evidence of his prior assault on his wife and a male companion of hers; and, (4) that his trial counsel was ineffective for failing to properly prepare for trial, introduce the work records of the deceased, and call certain witnesses for purposes of rebuttal.
. Pounds knew it was before 8 a. m. because Dan Leonard had not yet left for work which started at 8 a. m. He surmised the 6 a. m. time from his knowledge that his ex-wife, who lived across the street from the Leonards, left for work around 6 a. m. and his belief that he had been awakened by a car door slamming.
. Pounds based this estimate of the time on his knowledge that his mother’s boarder normally arose at 8 a. m., unlocked the front door and put down the porch awning, neither of which had been done when he arrived.
. Pounds’ testimony concerning his whereabouts during the early daylight hours of July 23, 1975 was not supported by any other evidence and was, in part, contradicted by Beverly Herrick, who testified she did not see Pounds on the 23rd until approximately 10:30 a. m. when he came to her room at a local motel. However, this does not affect the sufficiency of his testimony for the purpose of raising an alibi defense. See Commonwealth v. Bonomo, supra; Commonwealth v. Van Wright, supra. See also, State v. Reynolds, 517 S.W.2d 182 (Mo.App. 1974).
. This is so because the defendant bears no burden of proof on alibi, Commonwealth v. Bonomo, supra.
. Such an inference contravenes the presumption of innocence and the Commonwealth’s burden of proving the offense beyond a reasonable doubt. See Commonwealth v. Bonomo, supra; United States v. Ragghianti, 560 F.2d 1376 (9th Cir. 1977).
Dissenting Opinion
dissenting.
I dissent.
The majority correctly describes the alibi defense:
[ajlibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.
Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963) (emphasis supplied). Nevertheless, the majority then proceeds to ignore the latter part of that description and to misapply the law to the testimony in the instant case. According to appellant’s own testimony, during the crucial hour within which the decedent met his fate, appellant was alone, in or near his automobile, and within ten miles (all of which would be traversed on rural roads) of both where the body was found at decedent’s place of employment and the decedent’s home. This is not an alibi because, even if appellant had traveled to and been where he claimed, he was not so far removed from the scene of the crime as to “render it impossible for him to be the guilty party.” If two persons are in a house and one is found dead in the bedroom, the jury should not be instructed on the alibi defense merely because the other claimed that he never left the kitchen. That is precisely the situation in this case, and it is a misnomer to suggest that appellant’s testimony was in the nature of an alibi. In fact, a fair reading of appellant’s testimony shows it was no more than a general denial of guilt. He was not, therefore, entitled to a jury instruction on the alibi defense.
Accordingly, I would affirm the judgment of sentence.
. Because of my disposition of this issue, I need not address appellant’s claim that his constitutional rights were transgressed by the 30 month delay in this appeal which was caused by the trial judge’s failure to timely dispose of post-verdict motions and file an opinion, or the internal inconsistency of the majority opinion. (That is, the majority’s simultaneous conclusions that, on the one hand, appellant did not receive a fair trial and, on the other hand, that his rights were
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Gary Gerald POUNDS, Appellant
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