J-S45012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                                 IN THE SUPERIOR COURT OF
                                                                    PENNSYLVANIA
                                    Appellee

                             v.

DAMON JONES,

                                    Appellant                       No. 520 EDA 2013


             Appeal from the Judgment of Sentence December 14, 2012
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0907121-1982

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                                      FILED NOVEMBER 24, 2014

        Damon Jones appeals from the judgment of sentence of two

consecutive          life    sentences         imposed   by   the   trial   court   after   the

Commonwealth elected not to re-pursue the death penalty following the

grant of penalty phase relief during PCRA proceedings. After careful review,

we affirm.

        The facts of this matter were detailed by the Pennsylvania Supreme

Court in Commonwealth v. Jones, 610 A.2d 931 (Pa. 1992), as follows:

              Appellant's convictions arose from a drug-related massacre
        in which two persons were killed and six others were seriously
        wounded in a courtyard at the Richard Allen Housing Project
        (Project) in the City of Philadelphia. The factual background is as
        follows.


____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S45012-14


               On August 25, 1982, Sylvester Williams confronted Ernest
        Wright and demanded that he stop selling drugs in the Project.
        Williams confiscated the sum of $200.00 from Wright. Later that
        day, Williams encountered Isaiah Givens and discussed the
        earlier confrontation with Wright. Givens told Williams that there
        would be no acts of reprisal from himself, appellant, or Portie
        Robertson.     Nevertheless, on the following day, appellant,
        accompanied by Givens and Robertson, entered the courtyard of
        the Project. All three men were carrying handguns. At that time,
        Williams was near the steps of a building that fronted the
        courtyard. An unidentified man approached the well-armed trio,
        whereupon appellant announced, “This is not meant for you.
        Move.” Appellant, Givens, and Robertson then began to fire
        their weapons. In rapid succession they fired approximately
        twenty shots towards Williams. Numerous people were in the
        courtyard at the time, standing near Williams. Two of them,
        including one seven-year-old child, were killed and six others
        were seriously wounded.       Williams was not hit. Appellant,
        Givens, and Robertson fled but were soon apprehended by
        police.

              Appellant, Givens, and Robertson were tried jointly for this
        crime and all were convicted. In accordance with the jury's
        verdict in the penalty phase of trial, Givens and Robertson were
        sentenced to life imprisonment and appellant was sentenced to
        death.

Id. at 935.1

        Appellant filed a timely first time PCRA petition on January 16, 1997,

pursuant to the 1995 amendments to the PCRA statute.                  The PCRA court

ultimately directed that Appellant had until March 15, 2000, to file a

supplemental amended petition.                 Appellant complied, and the court heard
____________________________________________
1
   The jury returned guilty verdicts in the guilt phase of the trial on May 19
1983, after a two month trial, but Appellant was not sentenced until 1987.
The Pennsylvania Supreme Court in Commonwealth v. Jones, 912 A.2d
268 (Pa. 2006), noted that Appellant filed post-verdict motions raising
ninety claims of error. The Pennsylvania Supreme Court decided Appellant’s
direct appeal in 1992.


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argument on whether to grant an evidentiary hearing on July 26, 2000.

That same date, the PCRA court granted an earlier filed motion for discovery

relative to voir dire notes of the trial prosecutor. The Commonwealth filed

an interlocutory appeal, and the Pennsylvania Supreme Court reversed the

discovery order. Commonwealth v. Jones, 802 A.2d 1232 (Pa. 2002).

     Thereafter, on March 13, 2003, the PCRA court conducted an

evidentiary hearing. Subsequently, the court denied Appellant’s guilt phase

claims, but awarded penalty relief. Both Appellant and the Commonwealth

appealed.   The Supreme Court affirmed the PCRA court’s denial of guilt

phase relief. It also agreed that Appellant’s penalty phase claim regarding

trial counsel’s failure to develop whether Appellant had the capacity to

appreciate the criminality of his actions or conform his conduct to the law

was meritorious. However, Appellant had not adequately layered his claims

relative to appellate counsel.      Accordingly, the court remanded.   After

remand, the PCRA court reinstated its order finding that Appellant was

entitled to penalty phase relief.    The PCRA court entered that order on

August 3, 2007. The Commonwealth did not appeal.

     The matter remained dormant until Appellant filed a counseled motion

on March 23, 2009, seeking imposition of life imprisonment and arguing that

the court’s failure to conduct a new penalty phase trial was a violation of

Pa.R.Crim.P. 600 and denied him due process under the Fourteenth

Amendment. On May 22, 2009, the court denied the motion on the basis


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that Rule 600 did not apply to capital re-sentencing. The court certified its

order to allow Appellant to seek an interlocutory appeal by permission.

Initially, Appellant filed that appeal with this Court, which transferred the

matter to the Pennsylvania Supreme Court.                   The Pennsylvania Supreme

Court denied the petition on September 22, 2009.                    Commonwealth v.

Jones, 981 A.2d 1285 (Pa. 2009).

        Ultimately, the Commonwealth elected not to pursue the death

penalty.        The court sentenced Appellant on December 14, 2012, to two

consecutive terms of life imprisonment for the murder charges.                 Appellant

filed a pro se post-sentence motion and a request to proceed pro se. The

court denied Appellant’s post-sentence motion, but authorized him to

continue pro se.

        Appellant filed a timely pro se notice of appeal.               In response to

Appellant’s motion to compel the Commonwealth to provide him with the

record and request for an extension to file his brief, this Court, on July 15,

2013, remanded for a Grazier2 hearing to determine if Appellant’s waiver of

counsel was knowing, voluntary and intelligent. The trial court conducted a

Grazier hearing on September 20, 2013, and reaffirmed that Appellant

could proceed pro se.                 The court also directed that all relevant notes of

testimony and exhibits be provided to Appellant. The matter is now ready

for this Court’s review. Appellant presents two issues for our consideration.
____________________________________________
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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      1. Whether appellant’s speedy trial rights and due process
         rights guaranteed by the United States and Pennsylvania
         Constitution were violated by the delay between the vacation
         of his prior sentence and his resentencing; whether trial court
         erred in denying appellant’s motion to dismiss murder
         charges due to prejudicial delay in resentencing?

      2. Whether appellant’s speedy appeal rights, due process and
         equal protection rights guaranteed by the United States
         Constitution were violated by the State’s failure to provide
         appellant, an indigent pro se litigant, with a full and complete
         record per this Court’s order for purpose of meaningful
         appellate review, thereby resulting in a delay of this appeal?

Appellant’s brief at 2.

      Appellant’s initial issue implicates three separate but interrelated

positions relative to the failure to timely conduct capital resentencing and his

ultimate resentencing to life imprisonment.      Appellant’s three distinct and

intertwined arguments fall into the following categories: a violation of his

federal and Pennsylvania constitutional speedy trial rights, a violation of his

federal and Pennsylvania due process right to a speedy re-sentencing, and

an alleged violation of Pa.R.Crim.P. 600.

      Appellant    contends   that    the    Sixth   Amendment,     Fourteenth

Amendment, and Article I, § 9 guarantees of a speedy trial and due process

apply to capital resentencing proceedings and the failure to sentence him in

a timely fashion warrants discharge.        See Appellant’s brief at 16 (citing

Pollard v. United States, 352 U.S. 354 (1957), Burkett v. Cunningham,

826 F.2d 1208 (3rd Cir. 1987), Commonwealth v. Glass, 586 A.2d 369

(Pa. 1991), Commonwealth v. Pounds, 417 A.2d 597 (Pa. 1980), and


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Commonwealth v. Greer, 554 A.2d 980 (Pa.Super. 1989); United States

v. Sanders, 452 F.3d 572 (6th Cir. 2006) (delay in resentencing implicates

due process rights).    He accurately points out that in Pennsylvania, in

determining whether a person’s speedy trial rights or due process rights are

violated due to delay, the court looks to the four-part test outlined in Barker

v. Wingo, 407 U.S. 514 (1972).          This test first requires the court to

determine if the delay is sufficient to trigger further inquiry. If the delay is

substantial enough to implicate further review, the court balances the delay

with the reasons for the delay, examines whether the defendant timely

asserted his right, and, most importantly, determines if any prejudice

resulted.

      Appellant highlights that the length of the delay between the PCRA

court’s award of sentencing relief and his resentencing was over five years.

Noting that shorter delays have elicited review under a speedy trial analysis,

Appellant submits that the reason for the delay was because the court did

not schedule a new penalty phase trial within 120 of the PCRA court’s award

of sentencing relief.      See   Appellant’s brief at    17   (quoting former

Pa.R.Crim.P. 600(D)(1)). Citing Commonwealth v. Solano, 906 A.2d 1180

(Pa. 2006), and Commonwealth v. Bockzowski, 846 A.2d 75 (Pa. 2004),

for the proposition that Rule 600 applies to capital resentencing, Appellant

also argues that “the Commonwealth deliberately failed to make a ‘diligent

good faith effort’ to make a speedy determination of appellant’s case, after


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the court’s August 3, 2007 order granting him a new penalty phase trial.”

Appellant’s brief at 18.

        Appellant adds that it is immaterial whether the 120-day period of

Rule 600 or the 365 day time frame is utilized since his capital resentencing

was not conducted within either period.                      According to Appellant, the

Commonwealth “did absolutely nothing within either time period, following

the August 3, 2007 order granting appellant a new penalty phase trial, to

have the case scheduled for a new penalty phase trial.” Id. In Appellant’s

view, this alleged inaction is “presumptively prejudicial.” Id.

        Appellant maintains that because the Commonwealth successfully

argued before the lower court that Rule 600 did not apply and the

Pennsylvania Supreme Court denied his interlocutory appeal, his case was

never scheduled for resentencing for over five years. He contends that he

notified the court in September 2008 that he needed to be resentenced and

again on March 23, 2009.3                      Since the Commonwealth took no action to

schedule a new penalty phase hearing, Appellant argues that he timely

sought relief and the delay must be attributed to the Commonwealth.                   In

addition, Appellant suggests that the court below erred in considering

numerous defense continuances because the docket indicates that the

hearings that were continued were PCRA hearings and not his capital

____________________________________________
3
   The September filing referenced by Appellant was not docketed with the
Philadelphia Court of Common Pleas, but was a federal habeas petition.


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resentencing. With respect to the prejudice prong of the Barker test,

Appellant claims that he was made to suffer unnecessary anxiety due to fear

of being sentenced to death. Despite being incarcerated for life on another

murder conviction, Appellant argues that he was deprived of his personal

liberty because he was housed on death row and in solitary confinement.

The Commonwealth has not met the minimal appellate requirements of an

appellee by failing to file a timely brief in this matter.

      We    begin   with   the   language    of   the   respective   speedy   trial

constitutional provisions.     The Sixth Amendment’s speedy trial proviso,

which has been held to apply to the states via the Fourteenth Amendment,

see Klopfer v. North Carolina, 386 U.S. 213 (1967), reads, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have

been committed[.]”      U.S. Const. amend. VI.       Similarly, the Pennsylvania

Constitution provides, “in all criminal prosecutions, the accused hath a right

to . . . a speedy public trial by an impartial jury of the vicinage[.]” Pa.Const.

Art. I, § 9. In addition, the Pennsylvania Constitution sets forth that “Trial

by jury shall be as heretofore and the right thereof remain inviolate.”

Pa.Const. Art. 1, § 6. This latter provision has been construed to protect the

same right existing at the time of the ratification of the first Pennsylvania

constitutions. Byers v. Commonwealth, 42 Pa. 89 (1862); see also Van

Swartow v. Commonwealth, 24 Pa. 131 (1854).


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         The right to trial by jury was so sacrosanct that it was guaranteed to

Pennsylvania colonists even prior to William Penn’s arrival.        See Thomas

Raeburn White, Commentaries on the Constitution of Pennsylvania, 66

(1907). Specifically, it was set forth that:

         All trials shall be by twelve men, and as near as may be peers or
         equals, and of the neighborhood, and men without just
         exception. In cases of life there shall be first twenty four
         returned by the Sheriff for a grand inquest, of whom twelve at
         least shall find the complaint to be true, and then the twelve
         men, or peers, to be likewise returned by the Sheriff, shall have
         the final judgment; but reasonable challenges shall always be
         admitted against the said twelve or any of them.

Id. quoting Duke of York’s Book of Laws, 100.

         The Stamp Act Congress of the American Colonies, wrote in 1765,

“That trial by jury is the inherent and invaluable right of every British subject

in these colonies.” See Duncan v. Louisiana, 391 U.S. 145, 152 (1968).

The First Continental Congress echoed these sentiments in 1774, objecting

to legislation allowing colonists to be tried in Britain. Id. The Declaration of

Independence noted that colonists had been deprived of the right to trial by

jury, and that the King caused colonists to be transported to England for

trial.

         In Pennsylvania, those in the minority at the ratification convention for

the federal constitution issued a dissenting address that took issue with the

absence of a bill of rights.    Among the amendments the minority believed

should be considered was, “That in all capital and criminal prosecutions, a

man has a right to . . . a speedy trial by an impartial jury of his vicinage,

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without whose unanimous consent, he cannot be found guilty[.]”                    The

Address and Reasons of Dissent of the Minority of the Convention of

Pennsylvania to their Constituents, reprinted in The Anti-Federalist Papers

and the Constitutional Convention Debates, 239 (Ralph Ketcham, ed. 1986).

The Virginia ratifying convention, upon approval of the federal constitution

absent a bill of rights, recommended the adoption of a similar amendment

that read, “That, in all criminal and capital prosecutions, a man hath a

right . . . to a fair and speedy trial by an impartial jury of his vicinage,

without whose unanimous consent he cannot be found guilty[.]”                     The

Debates in the Convention of the Commonwealth of Virginia on the Adoption

of the Federal Constitution, June 27, 1788, reprinted in The Anti-Federalist

Papers and the Constitutional Convention Debates, 220 (Ralph Ketcham, ed.

1986).

      Alexander   Hamilton,   writing   as    Publius   in   Federalist   Paper   83

remarked, “The friends and adversaries of the plan of the convention, if they

agree in nothing else, concur at least in the value they set upon the trial by

jury; or if there is any difference between them it consists in this: the former

regard it as a valuable safeguard to liberty; the latter represent it as the

very palladium of free government.” Federalist Paper 83, reprinted in The

Federalist Papers, 498 (Charles R. Kesler, ed. 1961). Hence, the right to a

speedy jury trial to determine the guilt of an accused was essential to early

American constitutional writers and ratifiers.


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          Neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that the right to a speedy trial applies to

sentencing, let alone resentencing following the award of post-conviction

relief.    Rather, more precisely, the respective High Courts have assumed,

without deciding, that the right to a speedy trial extends to an original

sentencing proceeding.       See Pollard, supra; Pounds, supra; Glass,

supra;       Commonwealth       v.   Glover,   458   A.2d   935   (Pa.   1983).

Concomitantly, most of the federal circuit courts have either assumed

without analysis or imprecisely concluded that Pollard compels a finding

that the speedy trial right applies to sentencing. United States v. Ray, 578

F.3d 184, 192-193 (2nd Cir. 2009) (collecting cases).

          This Court, without meaningful discussion, has held that the speedy

trial guarantee applies to a non-capital sentencing proceeding where the

initial sentence was vacated at the request of the defendant, prior to a direct

appeal, and re-imposed over seven and one-half years later. Greer, supra.

In contrast to Greer’s cursory discussion, the Second Circuit Court of

Appeals has closely examined whether sentencing falls within the ambit of

the Sixth Amendment’s speedy jury trial protection and concluded that the

federal constitutional guarantee does not apply to non-capital resentencing

after a direct appeal remand. See Ray, supra.

          The Ray Court engaged in an original public meaning analysis, which

this Court is ordinarily required to do when construing our own constitution,


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Monongahela Nav. Co. v. Coons, 6 Watts and Serg. 101, 114 (Pa. 1843);

Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006), and elucidated

that Sir William Blackstone, in his famous Commentaries on the Laws of

England, distinguished between a trial and the judgment.       The judgment,

i.e., imposition of sentence, followed the trial and an adjudication of guilt.

See also Apprendi v. New Jersey, 530 U.S. 466, 479 n.4. (2000) (quoting

Blackstone); id. at 479-480 (footnote omitted) (bracket in original) (“As

Blackstone, among many others, has made clear, ‘[t]he judgment, though

pronounced or awarded by the judges, is not their determination or

sentence, but the determination and sentence of the law.’”).

      As the United States Supreme Court recognized in Woodson v. North

Carolina, 428 U.S. 280, 289 (1976) (plurality), “in 1791, the States

uniformly followed the common-law practice of making death the exclusive

and mandatory sentence for certain specified offenses.” Even before 1791,

“the Colonies at the time of the Revolution imposed death sentences on all

persons convicted of any of a considerable number of crimes, typically

including at a minimum, murder, treason, piracy, arson, rape, robbery,

burglary, and sodomy.” Id.

      Pennsylvania was the first state to categorize murder into degrees and

eliminate an automatic death sentence for certain homicide offenses. See

Woodson, supra; Commonwealth v. Carbone, 544 A.2d 462, 466 n.1

(Pa.Super. 1988) reversed on other grounds 574 A.2d 584 (Pa. 1990). In


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White v. Commonwealth, 6 Binn. 179 (Pa. 1813), the Pennsylvania

Supreme Court noted that, by statute, a jury determined the person’s

degree of guilt, unless a person was convicted by confession, and the court

sentenced accordingly. Where the defendant pled guilty, the court decided

the degree of guilt before imposing sentence.           Thus, the jury trial and

sentencing were distinct processes, though the jury determined the facts

necessary to impose a death sentence when the person did not plead guilty.

Id. at 183. The Court observed,

        It seems taken for granted, that it would not always appear on
        the face of the indictment of what degree the murder was,
        because the jury are to ascertain the degree, by their verdict, or
        in case of confession, the court are to ascertain it by
        examination of witnesses. But if the indictments were so drawn
        as plainly to show that the murder was of the first or second
        degree, all that the jury need do, would be to find the prisoner
        guilty in manner and form as he stands indicted.

Id.4


____________________________________________
4
  Professors Nancy J. King and Susan R. Klein, writing in the Vanderbilt Law
Review, have noted,

        In Pennsylvania, maximum terms of imprisonment were set by
        acts of 1786 and 1790. 1786 Pa. Laws 280-290; 1790 Pa. Laws
        293-306 (e.g., up to ten years for robbery, burglary, or
        sodomy). In 1794, most sentences for major felonies carried set
        minimum as well as maximum ranges. See 1794 Pa. Laws 174-
        181 (limiting penalties for, e.g., treason (six to twelve years);
        arson (five to twelve years); rape (two to twenty-one years);
        second-degree murder (five to eighteen years); forgery (four to
        fifteen years)); see also Brief History of Penal Legislation of
        Pennsylvania, 1 PA. J. PRISON DISCIPLINE & PHILANTHROPY 1,
        3-4 (1845)[.]
(Footnote Continued Next Page)

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        It is apparent from the language of the jury trial provisions that the

original public meaning of the term “trial” consisted of the phase of the

criminal prosecution that determined guilt or innocence, not sentencing

procedures.            Although Greer requires this Court to consider certain

sentencing claims within the ambit of the federal speedy trial clause, Greer

did not speak to a speedy trial right claim after the award of post-conviction

relief in the nature of a new capital penalty phase hearing. Further, Ray did

not discuss the issue in the context of a capital resentencing proceeding,

which involves distinct concerns not relevant to non-capital sentencing

scenarios.

        In this respect, we are aware that capital sentencing in Pennsylvania is

conducted by a jury and, under Pennsylvania’s death penalty scheme and

Ring v. Arizona, 536 U.S. 584 (2002), aggravating facts must be proven to

outweigh any mitigating factors to subject a person to the death penalty.5

Of course, there is no constitutional requirement that these aggravating

factors be determined at a separate penalty phase sentencing hearing.

Ring, supra at 612-613 (Scalia, J., concurring); cf. Spaziano v. Florida,

                       _______________________
(Footnote Continued)
Nancy J. King & Susan R. Klein, 54 Vand.L.Rev. 1467, 1506 n.134 (May
2001).
5
   We are cognizant that our Supreme Court has ruled that the aggravating
facts need not be found to outweigh mitigating circumstances by a beyond
the reasonable doubt standard, only that the aggravating factors be
determined by the reasonable doubt standard. Commonwealth v. Roney,
866 A.2d 351, 359-361 (Pa. 2005).


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468 U.S. 738 (1984) (Sixth Amendment does not require a jury to

determine appropriateness of death penalty); Proffitt v. Florida, 428 U.S.

242, 252 (1976) (plurality) (“it has never [been] suggested that jury

sentencing is constitutionally required.”).

      Simply put, the jury-trial right in the Sixth Amendment and Article I,

§ 9 did not guarantee a separate jury trial for purposes of capital sentencing,

only that the facts necessary to impose that sentence be determined during

the actual trial.   As discussed, the speedy jury-trial right was intended to

apply to the guilt determination of the accused.

      Nonetheless, while capital sentencing was not considered part of a trial

at the time of ratification of the speedy trial provisions, the guilt phase of

the trial would have encompassed the factual determinations that are now

separately decided at sentencing.     See Ring, supra; Walton v. Arizona,

497 U.S. 639, 710-711 (1990) (Stevens, J., dissenting) (italics in original)

(“the English jury's role in determining critical facts in homicide cases was

entrenched.    As fact-finder, the jury had the power to determine not only

whether the defendant was guilty of homicide but also the degree of the

offense.   Moreover, the jury's role in finding facts that would determine a

homicide defendant's eligibility for capital punishment was particularly well

established.   Throughout its history, the jury determined which homicide

defendants would be subject to capital punishment by making factual

determinations, many of which related to difficult assessments of the


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defendant's state of mind. By the time the Bill of Rights was adopted, the

jury's right to make these determinations was unquestioned.”); cf. Alleyne

v. United States, 133 S.Ct. 2151 (2013).6

        This is in contrast to discretionary sentencing proceedings in non-

capital cases, which did not fall within the parameters of a “trial” under the

original public meaning of the term. See Ray, supra; but compare Greer,

supra; Commonwealth ex rel. Holly v. Ashe, 82 A.2d 244, 251 (Pa.

1951) (Stern, J., dissenting) (“Our Constitution provides in Article I, sec. 9,

P.S. that ‘In all criminal prosecutions the accused hath a right to * * * a

speedy public trial * * *.’ The sentence is part of the trial. If the expiration

of the term is not to be accepted as the limit within which sentence must be

imposed, what alternative limit can be established in order to protect the

rights of a defendant who might otherwise languish indefinitely in jail, even

though perhaps improperly convicted, but unable to appeal to an appellate

court until sentence was imposed?”) (italics in original).

        Since Pennsylvania has elected to require a separate proceeding to

determine aggravating factors, that original proceeding under Ring is

included within the jury trial right. It would be incongruous to find that the

jury trial right includes a determination of aggravating factors for purposes
____________________________________________
6
    We do not imply that, at the time of ratification of the respective
constitutions, a jury would have been required to find aggravating factors to
sentence a person to death. As Justice Scalia noted in his concurring opinion
in Ring v. Arizona, 536 U.S. 584 (2002), this paradigm has arisen due to
evolving Eighth Amendment jurisprudence.


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of sentencing, but that the initial proceeding that does so is not included

within the speedy trial right protections. Thus, the penalty phase of a capital

trial and necessarily any resentencing under Pennsylvania’s current capital

scheme are part of the constitutional jury trial rights.     Compare Ring,

supra at 612-613 (Scalia, J., concurring) (“Those States that leave the

ultimate life-or-death decision to the judge may continue to do so—by

requiring a prior jury finding of aggravating factor in the sentencing phase

or, more simply, by placing the aggravating-factor determination (where it

logically belongs anyway) in the guilt phase.”).

        Regardless, the analysis that Pennsylvania courts employ in examining

a due process speedy sentencing question is identical to that utilized for a

speedy trial issue. Indeed, it is largely a matter of semantics whether the

speedy trial right or due process rights are implicated. Succinctly put, even

if the speedy trial provisions do not apply, a court may not delay capital

resentencing indefinitely without constitutional ramifications.     Pointedly,

once resentencing is provided, it must accord with due process.           See

Clemons v. Mississippi, 494 U.S. 738, 746 (1990) (capital sentencing

must accord with due process); Gardner v. Florida, 430 U.S. 349, 358

(1977) (plurality) (same); Sanders, supra at 580 (delay in resentencing

may run “afoul of due process guarantees”); Ray, supra at 199.7

____________________________________________
7
  We recently noted that the phrase “due process” is not contained in the
Pennsylvania Constitution, but the term “law of the land,” used in Article I,
(Footnote Continued Next Page)

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        Under both a speedy trial right and due process analysis, Pennsylvania

courts utilize the Barker test discussed by Appellant. Commonwealth v.

West, 938 A.2d 1034, 1045 (Pa. 2007) (collecting cases); see Pounds,

supra; Glover, supra at 664 n.1; compare Sanders, supra (holding Sixth

Amendment jury trial right does not apply to delay in non-capital

resentencing and that, while due process analysis applied, Barker test was

inapt). We agree with Appellant that the over-five-year delay between his

award of PCRA sentencing relief and the imposition of his sentence is

sufficient to trigger further inquiry.              Appellant’s claim, however, fails for

reasons we outline below.

        First, Appellant did not object to the absence of a new penalty hearing

until March 23, 2009, when he filed a motion for sentencing to life

imprisonment.8 Appellant’s claim that he earlier alerted the Commonwealth

via his federal habeas petition may well be true, but it would not have

alerted the trial court absent a filing with that body. Notably, Appellant had
                       _______________________
(Footnote Continued)
§ 9, is synonymous with that term. Commonwealth v. Rose, 81 A.3d 123,
126 n.2 (Pa.Super. 2013) (en banc) allowance of appeal granted on other
ground __ A.3d __ (Pa. 2014) (filed July 8, 2014) (citing Craig v. Kline, 65
Pa. 399, 413 (1870); Murray v. Hoboken Land & Imp. Co., 59 U.S. 272,
276 (1855); Commonwealth v. Harrell, 65 A.3d 420, 448 n.10 (Pa.Super.
2013) (Donohue, J. dissenting)).
8
      The PCRA judge that awarded sentencing relief indicated in a
September 17, 2009 opinion that neither Appellant nor the Commonwealth
alerted it that, because no appeal had been taken, the case needed to be
listed for a new penalty hearing. The court had scheduled a new penalty
hearing for April 17, 2009. According to the court, Appellant’s counsel
indicated that it could not proceed to the penalty phase hearing at that time.


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an incentive to delay capital resentencing, as he avoided imposition of the

death penalty during that time. As more than a year and one-half elapsed

between the award of a new sentencing and his motion for a sentence of life

imprisonment, Appellant did not timely assert either a speedy trial or due

process right to timely resentencing.

          Further, once Appellant did seek to be resentenced, he thereafter

requested numerous continuances.        Although Appellant asserts that the

extensions in this matter were continuances of PCRA proceedings and not

sentencing, he is mistaken.       Here, the continuances, though listed as

continuances of PCRA hearings on the docket, were unequivocally unrelated

to further PCRA proceedings since Appellant had already achieved PCRA

relief.    Rather, the purpose of the continuances was to allow counsel an

opportunity to adequately prepare for a new penalty phase hearing that

would be conducted over twenty-five years after Appellant’s original

convictions.

          Appellant first requested a continuance on October 23, 2009.

Subsequently, on March 19, 2010, Appellant again sought a continuance to

review voluminous material. The court granted an additional continuance on

April 29, 2011, to allow defense counsel to review Appellant’s habeas corpus

file.     The Commonwealth and Appellant received a joint continuance to

review litigation material on August 19, 2011. The court relisted the matter

three additional times in 2011: on September 30, October 21, and


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November 18, 2011.          On January 13, 2012, the court entered an order

indicating      that   Appellant’s   attorneys     were   unavailable    until   2013.

Appellant’s attorneys on that date had filed a continuance motion requesting

additional time for further penalty phase preparation. Appellant received yet

another continuance on March 15, 2012, based on a request for additional

investigation. Slightly over a month later, on April 26, 2012, the trial court

granted Appellant a continuance to prepare a motion seeking to preclude the

death penalty as well as to prepare for the new penalty phase proceeding.

        Thereafter, Appellant filed a motion to bar the death penalty on

May 24, 2012, and a continuance motion.              On August 16, 2012, the trial

court granted a continuance motion because the defense was unready to

proceed. The defense filed an additional request for further investigation on

September 27, 2012, and the court scheduled the matter for November 15,

2012.    On that date, the court listed the case for resentencing as a non-

capital matter for December 14, 2012. The court imposed two consecutive

life sentences on that date.

        Thus,    the   record   conclusively     establishes   that,   once   Appellant

requested sentencing, it was his own continuance requests that delayed

sentencing.       Furthermore, we discern no prejudice to Appellant.               We

disagree with Appellant’s assertion that a speedy capital resentencing claim

entitles him to discharge where a jury duly convicted him of the underlying

murders.        Appellant relies on case law that does not involve capital


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resentencing.          The appropriate remedy would be to preclude imposition of

the death penalty, as he himself argued below in his motion for sentencing

to life imprisonment, not complete discharge. As the Commonwealth did not

seek imposition of the death penalty, Appellant suffered no prejudice due to

the alleged delay in his capital resentencing.9

        While Appellant’s constitutional claims fail, the Pennsylvania Supreme

Court has accurately noted that Rule 600 provides an “independent bases for

asserting a claim of undue delay in appropriate cases.” Solano, supra at

1188 n.7.           Rule 600 has never been construed as applying to capital

resentencing, likely because defendants rarely seek to expedite the

possibility of being sentenced to death. The current version of Rule 600 was

not effective until July 1, 2013; therefore, it would be inapplicable even if we
____________________________________________
9
     The concurring decision maintains that our discussion of capital
resentencing is dicta. However, our discussion is necessary to resolve
Appellant’s issues. Moreover, the fact that Appellant was not capitally
sentenced does not render his argument that he was deprived of a
constitutional speedy resentencing moot. Appellant’s argument is that,
because the Commonwealth did not conduct a capital resentencing hearing
in a timely fashion, he should be entirely discharged. If there is no
constitutional speedy trial right to capital resentencing in the first instance
then his claim that he should be discharged would fail on that ground, i.e,
the constitutional speedy trial protections do not impact capital
resentencing.    Simply put, if the term “trial” does not include capital
resentencing, he had no constitutional right to a speedy capital resentencing
hearing. That he was ultimately not resentenced capitally does not make
our discussion dicta because Appellant’s position is that the very failure to
conduct a capital sentencing hearing resulted in prejudice and that his
ultimate sentence of life imprisonment violated his speedy trial rights. Our
discussion would only be dicta if we purported to hold that Appellant could
not be subject to the death penalty based on the delay, since Appellant is
not on death row.


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were to find Rule 600 applies. Accordingly, we must look to the version of

Rule 600 in effect during the relevant period.     That rule provided in its

entirety:

      (A)(1) Trial in a court case in which a written complaint is filed
      against the defendant after June 30, 1973 but before July 1,
      1974 shall commence no later than 270 days from the date on
      which the complaint is filed.

      (2) Trial in a court case in which a written complaint is filed
      against the defendant, when the defendant is incarcerated on
      that case, shall commence no later than 180 days from the date
      on which the complaint is filed.

      (3) Trial in a court case in which a written complaint is filed
      against the defendant, when the defendant is at liberty on bail,
      shall commence no later than 365 days from the date on which
      the complaint is filed.
      (4) Trial in a court case that is transferred from the juvenile
      court to the trial or criminal division shall commence in
      accordance with the provision set out in paragraphs (A)(2) and
      (A)(3) except that the time is to run from the date of filing the
      transfer order.

      (B) For the purpose of this rule, trial shall be deemed to
      commence on the date the trial judge calls the case to trial, or
      the defendant tenders a plea of guilty or nolo contendere.

      (C) In determining the period for commencement of trial, there
      shall be excluded therefrom:

      (1) the period of time between the filing of the written complaint
      and the defendant's arrest, provided that the defendant could
      not be apprehended because his or her whereabouts were
      unknown and could not be determined by due diligence;

      (2) any period of time for which the defendant expressly waives
      Rule 600;

      (3) such period of delay at any stage of the proceedings as
      results from:


                                    - 22 -
J-S45012-14


     (a) the unavailability of the defendant or the defendant's
     attorney;

     (b) any continuance granted at the request of the defendant or
     the defendant's attorney.

     (D)(1) When a trial court has granted a new trial and no appeal
     has been perfected, the new trial shall commence within 120
     days after the date of the order granting a new trial, if the
     defendant is incarcerated on that case. If the defendant has
     been released on bail, trial shall commence within 365 days of
     the trial court's order.

     (2) When an appellate court has remanded a case to the trial
     court, if the defendant is incarcerated on that case, trial shall
     commence within 120 days after the date of remand as it
     appears in the appellate court docket. If the defendant has been
     released on bail, trial shall commence within 365 days after the
     date of remand.

     (3) When a trial court has ordered that a defendant's
     participation in the ARD program be terminated pursuant to Rule
     184, trial shall commence within 120 days of the termination
     order if the defendant is incarcerated on that case. If the
     defendant has been released on bail, trial shall commence within
     365 days of the termination order.

     (E) No defendant shall be held in pre-trial incarceration on a
     given case for a period exceeding 180 days excluding time
     described in paragraph (C) above. Any defendant held in excess
     of 180 days is entitled upon petition to immediate release on
     nominal bail.

     (F) Nothing in this rule shall be construed to modify any time
     limit contained in any statute of limitations.

     (G) For defendants on bail after the expiration of 365 days, at
     any time before trial, the defendant or the defendant's attorney
     may apply to the court for an order dismissing the charges with
     prejudice on the ground that this rule has been violated. A copy
     of such motion shall be served upon the attorney for the
     Commonwealth, who shall also have the right to be heard
     thereon.


                                  - 23 -
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      If the court, upon hearing, shall determine that the
      Commonwealth exercised due diligence and that the
      circumstances occasioning the postponement were beyond the
      control of the Commonwealth, the motion to dismiss shall be
      denied and the case shall be listed for trial on a date certain. If,
      on any successive listing of the case, the Commonwealth is not
      prepared to proceed to trial on the date fixed, the court shall
      determine whether the Commonwealth exercised due diligence
      in attempting to be prepared to proceed to trial. If, at any time,
      it is determined that the Commonwealth did not exercise due
      diligence, the court shall dismiss the charges and discharge the
      defendant.

      In the event the case is dismissed pursuant to this paragraph,
      the court shall promptly prepare a report of continuances by the
      Commonwealth, and the reasons therefor, which prevented the
      case from coming to trial as required by this rule. Such report
      shall be certified by the president judge or administrative judge,
      shall be made part of the public record of the case, and shall be
      sent to the Court Administrator of Pennsylvania within 20 days of
      the order of discharge.

Pa.R.Crim.P. 600 (effective to July 1, 2013).

      We construe criminal rules of procedure based on the Statutory

Construction Act.   Pa.R.Crim.P. 101(C); Commonwealth v. Far, 46 A.3d

709, 712 (Pa. 2012); Commonwealth v. Williams, 9 A.3d 613, 618 (Pa.

2010).   Accordingly, we must “ascertain and effectuate the intent of the

drafters, a task that is best accomplished by considering the plain language

of the provision(s) at issue.” Far, supra at 712. Where the “words are not

explicit, then the court must consider various other indicia of intent, such as

the object and necessity of the rule and the mischief meant to be remedied.”

Id. In interpreting the rules, we “give effect to all their provisions, and a

single rule should not be read in a vacuum, especially where there is an


                                     - 24 -
J-S45012-14


apparent interrelationship among rules.”                Id.   “We may consult the

explanatory comments of the committee that worked on a rule” to determine

its original meaning. Id. at 713.

        As noted, Appellant contends that the Commonwealth was required to

conduct his resentencing within 120 or 365 days of the award of PCRA relief

in the nature of a new penalty phase hearing. We find that the term “trial”

in Rule 600 does not apply to capital sentencing, let alone resentencing. Cf.

Commonwealth v. Hill, 422 A.3d 1385, 1388 (Pa.Super. 1980) (in a non-

capital case, the court summarily found that Rule 600’s predecessor, Rule

1100, “has no relevance to sentencing”). First, the Pennsylvania Supreme

Court has promulgated a separate rule that deals with an initial speedy

sentencing, Pa.R.Crim.P. 704.10 Hence, Rule 600 was not intended to apply

to an original sentencing proceeding. Pointedly, the Pennsylvania Supreme

Court has noted that Rule 600’s dismissal provision does not, by its plain

language, apply to capital defendants for purposes of an initial trial.

Commonwealth v. Laird, 988 A.2d 618, 633 (Pa. 2010). Nonetheless, it

has applied Rule 600 to the commencement of the initial adjudication of

guilt, see Solano, supra, as well as a guilt phase retrial after the award of

federal habeas relief. Laird, supra.




____________________________________________
10
  Rule 704 has not been applied to resentencing. Commonwealth v. Fox,
953 A.2d 808 (Pa.Super. 2008).


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J-S45012-14


      Importantly, the word “trial” in Rule 600, when read in context, does

not apply to capital sentencing or capital resentencing after the grant of

PCRA relief. Rule 600(A) used the term “trial” to denote the beginning of

the proceeding for an adjudication of guilt. Similarly, Rule 600(B) indicated

that a trial began when the case was called for trial, or the defendant

entered a plea. The reference to pleas in conjunction with when a case is

called for trial plainly connotes that the Supreme Court intended to refer to a

trial proceeding under the common understanding of the term and not to

capital sentencing. Rule 600(C)(1) also unequivocally is directed toward the

ordinary understanding of the word “trial.” Concomitantly, Rule 600(D)(3),

which applies to ARD, uses the phrase “trial” in its ordinary sense. Further,

Rule 600(E) has no application to capital defendants. See Pa. Const. Art. I,

§ 14 (precluding bail for murder defendants); see also Commonwealth v.

Hill, 736 A.2d 578, 583 (Pa. 1999); cf. Commonwealth v. Sloan, 907

A.2d 460 (Pa. 2006).

      As discussed, Rule 600(G), the discharge provision of Rule 600, does

not, by its plain language, apply to capital defendants since they are not on

bail or eligible for bail. Only through court rulings has this portion of the rule

been extended to the initial trial proceeding.     Thus, we are left with Rule

600(D)(1) and (2). Appellant’s argument relates to Rule 600(D)(1). That

provision sets forth that “[w]hen a trial court” grants a new trial and no

appeal follows, “the new trial shall commence within 120 days after the date


                                      - 26 -
J-S45012-14


of the order granting a new trial, if the defendant is incarcerated on that

case. If the defendant has been released on bail, trial shall commence within

365 days of the trial court's order.” Former Rule 600(D)(1).

        The fact that a longer period is granted for those on bail than those

incarcerated strongly suggests that the rule was not intended to apply to the

arduous task of capital resentencing proceedings after PCRA relief, which

require lengthy and intensive preparation.          Also, the court that awarded

sentencing relief herein was not acting in its capacity as the criminal trial

judge, but as a PCRA court during collateral proceedings. Hence, it can be

said that no new sentencing was granted by a trial court. Rule 600(D)(1)

was intended to apply to the situation where a trial court awards a new trial

before the period for filing a direct appeal, not capital resentencing after the

grant of PCRA relief.

        We add that the purpose behind Rule 600 and the mischief to be

remedied was not delay in capital resentencing cases.            The Pennsylvania

Supreme Court enacted the predecessor to Rule 600, Rule 1100, to address

delay    in   the   commencement     of   initial     trial   proceedings.   See

Commonwealth v. Hamilton, 297 A.2d 127 (Pa. 1972) (calling for

adoption of procedural rule addressing setting a maximum time to bring a

defendant to trial after the institution of charges); see also Hill, 736 A.2d

at 580 (discussing Rule 1100 and stating the rule, “is intended to reduce the

backlog of cases awaiting trial and to ‘formulate a rule of criminal procedure


                                     - 27 -
J-S45012-14


fixing a maximum time limit’ to bring an accused to trial.”). For all of these

reasons, we hold that former Rule 600(D)(1) does not apply to resentencing

after the award of post-conviction relief.11

        Having resolved Appellant’s initial issue, we proceed to his second

claim.      Appellant alleges that his speedy appeal rights, due process and

equal protection rights were violated by the trial court’s failure to provide

him with a full and complete record. This issue is meritless. Initially, we

note that Appellant’s appeal has not been unnecessarily delayed. Further,

____________________________________________
11
    The concurring author concludes that our Rule 600 analysis is dicta. This
misapprehends both Appellant’s argument and the definition of dicta.
Appellant’s claim is that he should be discharged under Rule 600 because he
was not resentenced, either capitally or to life imprisonment, within the
appropriate Rule 600 time-frame. That issue fails because Rule 600 does
not apply to sentencing procedures after the award of PCRA sentencing
relief.

   We are aware that we have discussed that capital resentencing falls
within the constitutional speedy trial and due process protections but not the
criminal speedy trial procedural rule.          Contrary to the concurrence’s
suggestion, there is nothing incongruous about finding that Rule 600 does
not apply and the respective constitutional provisions do because Rule 600
was intended to offer greater protections. The concurrence simply ignores
the intent of Rule 600. It is immaterial that Rule 600 was intended to offer
greater protections than the respective constitutional provisions for the
period between when a person is charged and brought to trial. Rule 600
was not intended to apply at all to the sentencing situation presented herein.
Thus, since Rule 600 has no application to resentencing under these facts it
is a non-sequitur that Rule 600 generally provides more protection than the
constitutional speedy trial clauses. Pointedly, the meaning of the term “trial”
for each is based on differing considerations. Indeed, we have noted that
the original public meaning of the word “trial” did not encompass sentencing
and it is only as a result of the bifurcation of capital cases by statute and the
historical role of a jury that capital sentencing would be included within the
constitutional speedy jury trial rights in Pennsylvania.


                                               - 28 -
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our review of Appellant’s resentencing claims has not been impeded by the

lack of any purported transcripts.      Moreover, there would not be any

transcripts relative to continuances, which appears to be Appellant’s primary

complaint, and transcripts pertaining to the trial and original sentencing,

which are part of the record, are unnecessary to resolve his current issues.

Appellant’s briefing could not be inhibited by the lack of non-existent

transcripts for continuances, and his appeal has not been unnecessarily

delayed.

       Judgment of sentence affirmed.

       Judge Wecht files a Concurring Memorandum in which Justice

Fitzgerald Concurs in the Result.

       Justice Fitzgerald Concurs in the Result in this Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




                                    - 29 -
