No. 169 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 0370/0377 January Term, 1975.
Daniel M. Preminger, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant Vincent Jackson was convicted by a jury of three counts of indecent assault, three counts of involuntary deviate sexual intercourse, and two counts of rape. Following
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his conviction, appellant filed post verdict motions which were denied by the lower court. Appellant then was sentenced on the various charges. He appeals to this Court from the denial of his post verdict motion. He argues on appeal, as he did below, that his trial counsel was ineffective in failing (1) to file a motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 1100, (2) to take positive defense steps concerning potential witnesses, and (3) to object to improper closing arguments made by the District Attorney.*fn1 We have examined the briefs and the record in this case and have found appellant's second and third arguments to be meritless. He is not, therefore, entitled to a new trial. We are compelled to remand the case for further proceedings concerning the Rule 1100 issue.
In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record.
[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 test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis. [Footnote omitted.]
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967). In applying the standards set forth in Commonwealth ex rel. Washington v. Maroney, we first must determine whether the claim which the attorney is charged with not pursuing was arguably meritorious. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977). If appellant's Rule 1100 issue is meritorious he must be discharged because "we can perceive no reasonable legal basis for an attorney to fail to
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object to a violation of his client's right to speedy trial under Pa.R.Crim.P. 1100." Commonwealth v. Byrd, 250 Pa. ...