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COMMONWEALTH PENNSYLVANIA v. PAYTON ANTHONY ROBINSON (03/23/79)

submitted: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
PAYTON ANTHONY ROBINSON, APPELLANT



No. 2294 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County entered August 10, 1976, at Nos. 789-790 February Term, 1974.

COUNSEL

Robert M. Ruzzi, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Wieand

[ 272 Pa. Super. Page 421]

This appeal is from the denial of post conviction relief sought by appellant, Payton Anthony Robinson. It is a case in which trial counsel, even though providing appellant with a vigorous defense, is alleged to have been ineffective because he failed to anticipate an appellate court decision. Specifically, it is alleged that counsel was ineffective because (1) he filed a petition to dismiss under Pa.R.Crim.P. 1100(f) two days before the 270 day period for trial had expired, and (2) he failed to file an application to dismiss after the run date had passed.

Appellant was arrested on January 21, 1974 and charged the next day with robbery, conspiracy, and several weapons offenses. The provisions of Rule 1100(a)(1) dictated that

[ 272 Pa. Super. Page 422]

    trial had to commence within 270 days thereafter, i. e., by October 18, 1974. Two days prior to the run date, appellant's case was assigned to a courtroom as a back-up for a case then in trial. In order to insure that appellant's application to dismiss under Rule 1100(f) would be filed "before trial," counsel filed it immediately. When the charges against appellant were called for trial on Monday, October 21, 1974, counsel informed the court of the application to dismiss and requested a stay of proceedings until it had been heard and decided. A hearing was held, and appellant's application was denied on October 22, 1974. At that time, the trial judge sua sponte extended the time for trial to November 13, 1974, citing the unavailability of courtrooms on two prior trial dates. Trial commenced on October 29, 1974, following a two-day suppression hearing. Following trial, appellant was convicted on the weapons charges. Post trial motions were denied on December 5, 1974, and appellant was sentenced to a term of imprisonment for not less than 2 1/2 nor more than 5 years. The judgment of sentence was affirmed in Commonwealth v. Robinson, 238 Pa. Super. 508, 362 A.2d 1005 (1976). Subsequently, a P.C.H.A. petition was filed, alleging counsel's ineffectiveness. After argument and the submission of briefs, the petition was denied. This appeal followed.

The prior decision in this case is cited by appellant in support of his argument that counsel was ineffective for not filing a timely petition to dismiss. However, it was in that opinion that this court addressed for the first time the timeliness of an application to dismiss which had been filed prior to expiration of the prescribed period within which to commence trial. A majority of the Court held such an application to be premature and improper. Commonwealth v. Robinson, supra. Although the holding was based on an interpretation of Pa.R.Crim.P. 1100(f),*fn1 the only time requirement expressly contained in the rule was that an

[ 272 Pa. Super. Page 423]

    application to dismiss be filed "at any time before trial."*fn2 Following the decision in Robinson, this Court has on three occasions referred to the same issue and in all three instances has suggested that a premature filing of an application to dismiss is improper. Commonwealth v. Simpson, 269 Pa. Super. 124, 409 A.2d 95 (1979); Commonwealth v. Huertas, 261 Pa. Super. 257, 396 A.2d 386, n.6 (1978); Commonwealth v. Richbourgh, 246 Pa. Super. 300, n.8, 369 A.2d 1331, n.8 (1977).

When appellant's counsel filed the application to dismiss in the instant case he did not have the benefit of a decision holding it untimely and improper to file it before the time for trial had expired. The course which he chose must be examined under the standards existing at the time of his action. Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). See also: Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). Counsel will not be deemed ineffective for failing to predict future developments in the law. Commonwealth ...


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