For the Defense - Vol. 6, Issue 1 - 8

argue the delay is presumptively prejudicial.

Reason for the Delay
Pennsylvania courts interpret the " reason for
delay " prong of the Barker test as fact specific. In
Commonwealth v. Glover, the court reasoned " a
deliberate attempt to delay the trial in order to hamper
the defense should be weighed heavily against the
government. A more neutral reason such as negligence
or overcrowded courts should be weighed less heavily
but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.17 A valid
reason, such as a missing witness, should serve to justify
appropriate delay.18 In deciding Glover, the Supreme
Court found that, " The record does not indicate that
either appellant or the [C]ommonwealth deliberately
attempted to cause the delay. Since the delay is not
attributable to the affirmative actions of appellant,
the ultimate responsibility for the delay weighs against
the Commonwealth, though less heavily than would a
deliberate attempt by the commonwealth to cause the
delay. " 19
In Commonwealth v. West,20 Mr. West was released
on bond pending appeal. After he lost his appeal,
his sentence became final. However, the trial court
took no affirmative steps to recommit the defendant
to serve his sentence. A period of nine years lapsed
where the defendant was at liberty before the error
was uncovered. The Supreme Court of Pennsylvania
found " it significant that at various times in his prior
encounters with the criminal justice system court
officials recognized that West was not serving his
sentence and yet no action was taken to rectify this
error. " This case illustrated " a situation in which the
government continually failed to address the problem,
despite its opportunities to do so, during an extended
period of years. " Although the Supreme Court was
clearly unhappy with the lack of diligence by the
Court in this matter, it nonetheless ruled against the
defendant and found that his due process rights were
not violated.21
In Commonwealth v. Miskovitch,22 the court found
that the appellant's speedy trial right was not violated
even though appellant waited five years before
proceeding to trial. When specifically interpreting
the " reason for the delay " prong the court found,
" the lion's share of delay in this case stemmed from
two primary sources: appellant's repeated discharge
of appointed counsel, and the repeated attempts by
the defense and the trial court to evaluate appellant's
competency to stand trial.23
Although it will be difficult to argue that delays
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For The Defense l Vol. 6, Issue 1

attributable to a global pandemic could be construed
as a deliberate delay to hamper the defense, in
Commonwealth v. Pounds, the court stated,
The only explanations offered of record
were the presiding judge's heavy caseload
and his admittedly inadequate administration
of those cases. While the former offers
some excuse for the delay, these reasons
do not justify a delay of a year beyond the
time required for disposition of post-verdict
motions.24
Therefore, it is imperative to examine how the
various courts choose to administer their dockets,
plan for the administration of backlog, and diligently
schedule cases with consideration of the delays that
have already occurred, to determine whether a speedy
trial violation occurred.
In summary, courts may and should consider factors
such as whether counsel is fully prepared, whether pretrial motions are filed and litigated in advance where
possible, and whether the reasons for postponements
are specific and detailed when reviewing the reason
for the delay. There is a distinct possibility that heavy
caseloads will result in additional delays after the
courts resume to prior operating procedure. It should
be noted that the administration of cases by the court
were at issue in both Africa and Pounds. Since the
manner in which trial courts administer their dockets is
analyzed under this prong, becoming familiar with, and
comparing the manner in which adjacent jurisdictions
are re-opening and listing trials would also be valuable
to place on the record.

Demand for Speedy Trial
Although trial attorneys should always be cognizant
of the dangers of waiving an issue for appeal, when
it comes to speedy trial, the onus is particularly
burdensome. A waiver on the part of the defendant,
or his counsel, could forever forgo the opportunity to
obtain relief due to a violation of this protection.
Similar to the analysis that exists under Rule 600, the
defendant who fails to appear for court when properly
subpoenaed will have the delay attributed to him or
her. A defendant needs to demand a speedy trial. The
failure to appear for a court hearing has been deemed
a waiver of a defendant's ability to raise a speedy trial
violation.25
The United States Third Circuit Court of Appeals
analyzed this factor extensively in United States v.
Velazquez.26 There, the defendant asserted his right
to a speedy trial via motion within four months of

For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1