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COMMONWEALTH PENNSYLVANIA v. CARL S. JOHNSON (04/12/79)

decided: April 12, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
CARL S. JOHNSON, APPELLANT



No. 2164 October Term, 1976, Appeal from the judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 982, 983, 984, 985, August Sessions, 1975.

COUNSEL

Alfeo P. Libetti, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.

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

Author: Price

[ 265 Pa. Super. Page 30]

On January 16, 1975, a complaint was lodged against appellant, charging him with various offenses. After a jury trial which commenced on February 10, 1976, appellant was convicted of robbery,*fn1 burglary,*fn2 and possessing an instrument of crime.*fn3 Post-trial motions were argued and denied on June 30, 1976. Appellant, represented by counsel other than trial counsel (who also filed appellant's post-trial motions), now contends inter alia, that trial counsel was ineffective*fn4 in failing to assert timely a violation of his speedy trial right under Pa.R.Crim.P. 1100. We are constrained to agree and, therefore, vacate the judgment of sentence and order appellant discharged.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967), sets forth the standard by which we adjudge an ineffectiveness claim: "[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 court has further elucidated that it is only when the claim foregone was of arguable merit that we must examine counsel's reason for failing to pursue it. Therefore, "[t]he initial factor which must be considered in applying this reasonable basis standard is whether the claim which [trial] counsel is charged with not pursuing had some reasonable basis." Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695 (1977).

[ 265 Pa. Super. Page 31]

Since the complaint in this case was filed on January 16, 1975, the Commonwealth had 180 days, or until July 15, 1975, to bring appellant to trial in accord with Pa.R.Crim.P. 1100(a)(2).*fn5 Trial did not commence, however, until February 10, 1976, 390 days after the complaint was filed.*fn6

It is well settled that all periods of delay beyond the mandatory period for trial's commencement "'. . . must be either excluded from the computation [of the period,

[ 265 Pa. Super. Page 32]

Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). In the instant case, the Commonwealth filed no extension petition. Our consideration is therefore confined to arguably excludable periods under Rule 1100(d). Thus, in order to find that the Commonwealth brought appellant to trial timely we must find 210 days of the 390 day period between the complaint and trial's commencement excludable under Rule 1100(d), which provides:

"In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of ...


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