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COMMONWEALTH PENNSYLVANIA v. ROBERTO I. TOME (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERTO I. TOME, APPELLANT



Nos. 334 and 64 January Term, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Montgomery County, at Nos. 3981.2, 3981.3, 3981.5, 3981.6 and 3981.7 October Term, 1974

COUNSEL

George B. Ditter, Chief, Appeals Div., Norristown, for appellant.

Eric J. Cox, Asst. Dist. Atty., Norristown, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., files a dissenting opinion. Larsen, J., files a dissenting opinion.

Author: O'brien

[ 484 Pa. Page 264]

OPINION OF THE COURT

Appellant, Roberto I. Tome, was convicted by a jury of two counts of murder of the second degree, burglary, criminal attempt and violations of the Uniform Firearms Act for the September 28, 1974, shooting deaths of two sisters, Doris and Jean Maile, at their home and place of business known as the Villanova Nursery in Upper Merion Township, Pennsylvania. Post-verdict motions were denied and appellant was sentenced to a single prison term of ten to twenty years for the two murder convictions,*fn1 with a consecutive ten-to-twenty-year prison term on the burglary conviction. Sentence was suspended on the remaining convictions. Approximately two weeks after the original pronouncements of sentence, however, appellant's sentence for the murder convictions was increased to a single term of life imprisonment. The remaining sentences were not altered. This direct appeal followed from the judgment of sentence on the murder convictions. A direct appeal from the judgment of sentence on the burglary conviction was taken to the Superior Court, which certified that appeal to this court for disposition.*fn2

Appellant raises numerous allegations of error, many of which deal with the effectiveness of counsel at all stages of the instant proceedings. In Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we stated:

[ 484 Pa. Page 265]

"In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

'[C]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 initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis. In Maroney, 427 Pa. 599, 235 A.2d 349, we noted that 'a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.' Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. See, e. g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa. Super. 42, 323 A.2d 848 (1974); cf. Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for the post-trial counsel's decision not to pursue the matter." (Emphasis in original.)

Appellant first claims that trial counsel was ineffective for failing to file a motion to quash the indictments for burglary, criminal attempt and violations of the Uniform Firearms Act. The facts are as follows.

Appellant was arrested without a warrant on October 15, 1974, and was charged with murder and criminal conspiracy. A preliminary hearing on these charges was held on October 25, 1974. On March 19, 1975, appellant was charged additionally with burglary, criminal attempt and violations of

[ 484 Pa. Page 266]

    the Uniform Firearms Act. On March 25, 1975, appellant signed a written waiver of a preliminary hearing on these charges. All charges were subsequently consolidated for trial.

Appellant first believes a motion to quash, if filed, would have been granted because of Pa.R.Crim.P. 131 and our decision in Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978). We disagree. Pa.R.Crim.P. 131(b) provides:

"When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case."

Appellant believes that since the charges of burglary, criminal attempt and violations of the Uniform Firearms Act were brought in a second subsequent complaint to the one charging murder and conspiracy, Rule 131(b) requires dismissal of the charges brought on the second complaint. Pa.R.Crim.P. 131(c) provides, however, that:

"Upon application by any interested person and proof that any provision of paragraphs (a) or (b) hereof was violated, a judge of the court may order the forfeiture of all additional costs of the issuing authority accrued by reason of such violation, and thereafter such costs shall not be taxed in the case."

A reading shows that Subsection (c) gives the remedy for a violation of Subsection (b), and the remedy is clearly not dismissal of the charges brought on the second complaint, as suggested by appellant.

Further, Commonwealth v. Earp, supra, is inapposite. There, the defendant was charged with numerous offenses arising from the same episode, two of which were murder and conspiracy. At a preliminary hearing on those two charges, both were dismissed for want of evidence. The defendant, however, was continuously held on the remaining charges, was subsequently rearrested, and was charged again with murder and conspiracy. The defendant's trial commenced within 180 days of the rearrest date but more than 180 days from the original arrest date. The court held

[ 484 Pa. Page 267]

    that under these facts, the defendant's trial was not commenced within the time period prescribed by Pa.R.Crim.P. 1100, and, therefore, the defendant was discharged. The reason we believe that Earp does not control is because while Rule 1100 calls for discharge upon violation of that rule, Rule 131 prescribes no such remedy. In the instant case, appellant could have avoided paying the costs involved on the second complaint. Dismissal of the charges, however, was not possible on the grounds ...


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