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decided: January 29, 1976.



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]


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 competency of counsel in proceedings prior to the plea is relevant only to the basic question whether the plea was voluntarily and intelligently made." In the case at bar neither the legality of the sentence nor the voluntariness of the plea is questioned, nor is any attempt made to relate

[ 466 Pa. Page 28]

    the passage of more than 90 days to the validity of the plea.*fn5

Judgments of sentence affirmed.*fn6

ROBERTS, Justice (dissenting).

I dissent. The majority ignores (1) a clear violation of rule 1100, (2) a textbook case of ineffective assistance

[ 466 Pa. Page 29]

    of trial counsel, and (3) appellant's inartfully expressed challenge to the voluntariness of his plea.

The Commonwealth's brief in this case states that this Court ordered a new trial on December 7, 1973, and that the first listing of the case was January 23, 1974. This was a delay of 47 days. At the first listing the case was continued until February 13, 1974, to allow time for a court ordered psychiatric examination of appellant. On February 13th the case was continued until February 14th. On the 14th it was continued until February 15th. On the 15th it was placed in the "Ready Pool for Room 613." The case was not heard until April 16, 1974. From February 15th until April 16th is a delay of another 59 days. There is nothing in the record, by the Commonwealth's own admission, to explain this delay of 106 days, nor is there anything that in any way indicates that appellant contributed to or had any control over this delay. There is no doubt that rule 1100, which, at that time, allowed 90 days for a new trial, was violated.

The majority states that "failure to [seek the remedy of dismissal of all charges for a violation of rule 1100] is not an automatic indication of ineffectiveness of defense counsel." I cannot conceive of any circumstances in which defense counsel could claim to be serving the best interests of his client while failing to pursue a course of action which would completely free his client. This is even more true when the client has already been convicted of the crimes charged once, and thus has little if any interest in preserving his reputation by standing trial and winning an acquittal. Just as there was a clear violation of rule 1100, there is a clear case of ineffective assistance of trial counsel.

The majority states that "the claimed ineffectiveness [of trial counsel] is not an independent ground for relief on appeal, but relates to the validity of the plea." Without arguing the accuracy of this statement, I cannot agree with the majority that appellant is not challenging

[ 466 Pa. Page 30]

    the validity of his plea. If he had been effectively assisted by trial counsel he would have been discharged because of the violation of rule 1100. As a result of the discharge, he would not have been required to plead to the charges. Thus, his plea was not knowing, intelligent or voluntary because he was never told that he could go free.

What is even more disturbing about this case is that appellant had filed a pro se petition for discharge which was never ruled upon. The majority uses this to show that appellant acted knowingly at his guilty plea hearing. To the contrary, it demonstrates not only that appellant was severely prejudiced by trial counsel's ineffectiveness, but also that the trial court was prevented from ruling on a meritorious claim because of counsel's neglect.

Finally, the majority asserts that "the validity of a guilty plea may not normally be raised for the first time on direct appeal from the judgment of sentence." I disagree. There is nothing in our rules of criminal procedure which requires the filing of a motion to withdraw the plea before this Court can consider the validity of the plea. Moreover, the majority makes no distinction between claims which may be decided on the record and those which require evidentiary hearings to be resolved. In view of the burden which the trial courts already bear, I am loath to interpose another step, which will often be completely unnecessary, between judgment of sentence and appeal. This Court has long been able to decide when a case must be remanded for an evidentiary hearing, and has long felt free to do so. The effective administration of justice is not well served by the majority's suggested procedure which will do little to lighten our case load, at the cost of greatly increasing the load on the trial courts of the Commonwealth.

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