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COMMONWEALTH PENNSYLVANIA v. ALLEN DOZIER (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN DOZIER, APPELLANT



No. 2141 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 1106 of the January Term, 1975.

COUNSEL

Cheryl A. Furey, Jenkintown, for appellant.

L. Tucker, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 370]

On December 28, 1974, a criminal complaint was filed against the appellant, charging him with various offenses. On July 25, 1975, the appellant was found guilty of robbery and simple assault. The appellant claims that he was denied effective assistance of counsel in the court below because his trial counsel failed to assert in timely fashion a violation of his Pa.R.Crim.P. 1100 right to a speedy trial.*fn1 We are constrained to agree with appellant's claim.

In resolving a claim of ineffectiveness of counsel, we are guided by the standard proclaimed in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967): "[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." The Pennsylvania Supreme Court, however, in Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977), further explained that "[i]t is only when the claim which was foregone [sic] was of arguable merit that we must make an inquiry into the basis for the [trial] counsel's decision not to pursue the matter." Thus, "[t]he initial factor which must be considered in applying this reasonable basis standard is whether the claim which [trial] counsel is charged with not pursuing had some reasonable basis." Id., 472 Pa. at 277, 372 A.2d at 695.

As previously stated, the criminal complaint against the appellant was filed on December 28, 1974. Under the mandate of Pa.R.Crim.P. 1100(a)(2), the Commonwealth had 180 days from the date the complaint was filed, or until June 26,

[ 258 Pa. Super. Page 3711975]

, to bring the appellant to trial.*fn2 On March 12, 1975, the appellant appeared before the court below to enter a negotiated guilty plea. After an extensive guilty plea colloquy, the appellant informed the hearing judge that he did not wish to plead guilty. The hearing judge then directed the parties to proceed on the appellant's oral motion to suppress evidence. At the end of the suppression hearing, the hearing judge reserved his decision on appellant's motion and listed the case to be tried on March 17, 1975.*fn3 Trial eventually commenced on July 21, 1975, 205 days after the filing of the complaint.

The Commonwealth now argues that the appellant's right to a speedy trial was not violated because trial began timely on March 12, 1975, when the hearing on appellant's motion to suppress commenced. The appellant, however, asserts that trial did not commence until July 21, 1975, or after the expiration of the mandatory period. The initial question therefore before us is when did "trial" commence in the instant case.

Normally, under Rule 1100, trial commences when the lower court ascertains that the parties are present and orders them to proceed to the hearing of any motion which had been reserved for trial. Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977); Pa.R.Crim.P. 1100, Comment; see also Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). In Commonwealth v. Taylor, 254 Pa. Super. 211, 385 A.2d 984 (1978), we expounded that a hearing on a motion which had been reserved for trial will not signify the commencement of trial under Rule 1100 unless ". . . it reflects a commitment ...


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