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COMMONWEALTH PENNSYLVANIA v. DAVID BUNCH (01/29/76)

decided: January 29, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID BUNCH, APPELLANT



COUNSEL

Paul Leo McSorley, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief Appeals Div., Francis C. Barbieri, Jr., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and O'Brien, JJ., concur in the result. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., join.

Author: Pomeroy

[ 466 Pa. Page 25]

OPINION OF THE COURT

Appellant, David Bunch, was found guilty by a jury of murder in the first degree for the killings of Dora Grant and her eight-year-old son, Nathan Grant, and sentenced to concurrent sentences of life imprisonment. On November 26, 1973, this Court reversed the judgments of sentence and remanded the case for a new trial. Commonwealth v. Bunch, 454 Pa. 365, 311 A.2d 632 (1973). On April 16, 1974, the Commonwealth having certified that the degree of guilt with regard to both homicides rose no higher than murder in the second degree, the appellant pleaded guilty to murder in connection with both killings. On May 30, 1974, the appellant was sentenced to concurrent terms of not less

[ 466 Pa. Page 26]

    than ten nor more than twenty years' imprisonment. This appeal followed.*fn1

The sole contention made to us on this appeal is that appellant's counsel in the trial court was ineffective in that he did not file a motion to dismiss the charges and discharge the appellant pursuant to Rule 1100 of our Rules of Criminal Procedure for the reason that appellant's second trial was not commenced within the time prescribed by that Rule.*fn2

While it is clear from the record that more than 90 days did elapse between the date of the new trial order which this Court entered on the prior appeal and the date the guilty plea was accepted, this does not, by itself, establish that Rule 1100 was violated by the Commonwealth.*fn3 The rule was intended to implement a criminal defendant's constitutional right to a speedy trial, see Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), but it is not self-executing, since it recognizes that delays may be due to causes beyond the control

[ 466 Pa. Page 27]

    of the Commonwealth.*fn4 Thus, a defendant may in a proper case seek to avail himself of the remedy for delay which the rule prescribes, but failure to do so is not an automatic indication of ineffectiveness of defense counsel.

We have in the past repeatedly held that the only grounds for appeal following a guilty plea which has resulted in a judgment of murder in the second degree are the voluntariness of the plea and the legality of the sentence (including in the latter category the jurisdiction of the sentencing court). See, e. g. Commonwealth v. Geer, 457 Pa. 646, 326 A.2d 338 (1975); Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973); Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971). It is true, of course, that a defendant is entitled to the effective assistance of trial counsel whether a case proceeds to trial or is disposed of on a guilty plea. It is conceivable that a dereliction of one sort or another by a lawyer for a defendant could result in the entry of a plea that was not voluntarily or intelligently made. In such a case, the claimed ineffectiveness is not an independent ground for relief on appeal, but relates to the validity of the plea. As we observed in Commonwealth v. Little, supra 455 Pa. at 166, n. 1, 314 A.2d 271, n. 1 where a similar claim was before us, "the question of ...


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