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COMMONWEALTH PENNSYLVANIA v. WANSLEY O. MCNEAL (12/22/78)

decided: December 22, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
WANSLEY O. MCNEAL, APPELLANT



No. 113 October Term 1978, Appeal from the Judgment of Sentence imposed by the Hon. Joseph T. Lamrum, Jr., in the Court of Common Pleas of Delaware County, Pa., Criminal Div. as of Nos. 1121, 1122, and 113, September Sess., 1975.

COUNSEL

Roy H. Davis, Assistant Public Defender, Drexel Hill, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, and Price and Van der Voort, JJ., concur in the result. Hester, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 261 Pa. Super. Page 334]

The question raised on this appeal is whether appellant was denied effective assistance of counsel when counsel failed to preserve for appeal the question of timely trial under Rule 1100.

A criminal complaint charging appellant with theft by deception was filed on January 7, 1975. Two more such complaints were filed on March 12, 1975. At these times, appellant was a fugitive from Virginia authorities on unrelated charges. He was subsequently apprehended in Washington, D. C., and was jailed there on federal charges.

On August 18, 1975, Peter D. Ward, assistant federal public defender in Maryland, wrote a letter to the Delaware County district attorney's office, revealing appellant's whereabouts, and advising that appellant planned to plead guilty to the federal charges. On September 3, 1975, Ward wrote another such letter, saying that the guilty plea would be entered September 30, and inquiring whether Delaware County still planned to prosecute appellant on its charges.

In an undated letter, Ward advised the Delaware County district attorney's office that on November 11, 1975, appellant had been sentenced to three concurrent ten-year terms in federal court; he again inquired whether Delaware County still intended to prosecute. Although undated, this letter must have been sent sometime between November 11 and November 20, for a letter from Ward to appellant, dated November 21, notified appellant that Ward had written such letters to the various states in which charges against appellant were outstanding.

On January 12, 1976, Ward wrote the Delaware County district attorney's office advising that appellant was serving his sentence in Atlanta, Ga., and asking what Delaware County planned to do about its charges.

[ 261 Pa. Super. Page 335]

On April 20, 1976, appellant was officially notified by prison officials of all the detainers lodged against him; Delaware County's detainer was the only one listed.*fn1

On June 2, 1976, Delaware County initiated extradition proceedings against appellant. On July 14 the Commonwealth filed a Rule 1100(c) petition to extend the time for trial. On July 26 an extension until November 30 was granted. On July 28 appellant was returned to Delaware County. Thereafter, appellant signed two Rule 1100 waivers and was granted two continuances. On October 18 appellant filed a Motion to ...


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