No. 401 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Section, imposed on Indictment Nos. 369, 370 and 374, December Term, 1973.
Anthony G. Bateman, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision on this case.
[ 260 Pa. Super. Page 344]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, imposed on Indictment Nos. 369, 370 and 374, December Term, 1973. The procedural history and facts relevant to this appeal are as follows:
Appellant was arrested on November 11, 1973, for robbery but the complaint was filed on November 12, 1973. A preliminary hearing was held on November 21, 1973, at which time appellant was held for court, but was released on bail. On December 3, 1973, he was rearrested as a parole violator and was incarcerated from that date until August 16, 1974, the date of his trial. The case was initially listed for trial on December 17, 1973, at which time a bench warrant was issued because of appellant's failure to appear. Appellant was incarcerated, and the bench warrant was entirely inappropriate. On January 21, 1974, the case was again listed for trial; appellant was present but the case was relisted for March 12, 1974. At that time, a bench warrant was again issued for appellant who was in custody the entire time. The next listing was for March 25, 1974, at which time the bench warrant was withdrawn and the case continued to April 16, 1974, when it was again continued to May 3, 1974 in order that appellant could be tried with his co-defendant. On May 3, 1974, a bench warrant was again issued, and subsequently withdrawn on May 10, 1974, when the case was relisted for June 5, 1974, with the public defender being appointed to represent appellant or private counsel, if engaged. On July 8, 1974, the case was continued at appellant's request until July 24, 1974. There is no reason
[ 260 Pa. Super. Page 345]
indicated on the docket for the further continuance until August 5, 1974, at which time Irvin Gross, Esquire, whom appellant indicated was his counsel, failed to appear. On August 6, 1974, Mr. Gross did appear and indicated that he did not represent the appellant. On August 8, 1974, pre-trial motions were heard by the court, having been reserved for hearing until just prior to trial. The case was continued until August 9, 1974, at which time the wrong defendant was brought to the courtroom, and the case was continued until Monday, August 12, 1974, when appellant filed a motion to dismiss pursuant to the 270-day rule which was denied late in the day. The Commonwealth was ready, willing and able to proceed to trial at that time. On August 13, 1974, after appellant requested that the Rule 1100 motion judge disqualify himself, he made an on-the-record waiver of his Rule 1100 rights until August 16, 1974, when the case was tried. Appellant was found guilty of three counts of robbery and his trial counsel made oral motions in arrest of judgment and for a new trial based upon insufficiency of the evidence, and the weight of the evidence. Appellant's counsel made no mention of the Rule 1100 claim which had been denied by the trial court. His counsel, after an appeal was filed to this court, filed an "Anders" brief claiming there were no meritorious issues on appeal. We entered a judgment of non-pros on the appeal. Appellant filed a Post Conviction Hearing Act petition alleging ineffective assistance of counsel in that any Rule 1100 claim was not properly preserved by his trial counsel for appellate review. After hearing on said petition, the Honorable Ethan Allen Doty entered an order permitting appellant to file a direct appeal nunc pro tunc, and properly made no further determination of the allegations in said petition. This appeal followed.
Appellant alleges that he was denied the effective assistance of counsel as his trial counsel failed to raise and properly preserve for appeal on post-trial motions, the issue of the alleged Rule 1100 violation, which he contends has merit.
[ 260 Pa. Super. Page 346]
The guidelines for determining whether counsel is ineffective were set forth by the Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) wherein the court stated:
"Our 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 ...