No. 158 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7503536A
Andrew J. Achman, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, Wieand and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
Irving Bundridge, appellant, was tried by jury and convicted of bribery,*fn1 criminal solicitation to commit perjury,*fn2 tampering with a witness,*fn3 and violation of the Controlled Substance Act.*fn4 On appeal to this Court, the convictions were upheld, and a judgment of sentence was affirmed.*fn5 Thereafter, a P.C.H.A. petition was filed and denied following hearing. In the instant appeal from such denial, appellant argues that his first appellate counsel was ineffective for failing to pursue on direct appeal a pre-trial ruling which had denied his application to dismiss under Pa.R.Crim.P. 1100. We find no merit in this contention and affirm the order of the court below.
At the P.C.H.A. hearing, appellate counsel testified that the Rule 1100 claim had not been argued on direct appeal because, in his judgment, it lacked merit. If counsel failed to pursue a meritorious claim, i. e., one which would have required reversal of appellant's conviction, his representation of appellant would have been constitutionally ineffective. Commonwealth v. Danzy, 234 Pa. Super. 633, 340 A.2d 494 (1975). The burden of proving ineffectiveness, however, was on appellant. Commonwealth v. Klaric, 263 Pa. Super. 286, 397 A.2d 1212 (1979); Commonwealth v. Sweitzer, 261 Pa. Super. 183, 395 A.2d 1376 (1978); Commonwealth v. Barnes, 248 Pa. Super. 579, 375 A.2d 392 (1977). This burden appellant failed to carry. He has failed to show that counsel could have argued successfully that appellant's trial was held in violation of the 180 day requirement of Rule 1100. Instead, the record discloses a case, no longer
uncommon, in which the defense and the defense alone had caused a series of trial delays and then attempted to take advantage of such delays to obtain a dismissal of the charges.
Criminal complaints were filed on April 24, 1975, and appellant was arrested the same day. On July 29, 1975, a trial postponement was granted at the request of appellant's privately retained counsel, who told the court that he required additional time within which to prepare and file pre-trial motions. The written application, containing the signatures of appellant and his counsel, recited unequivocally: "This case shall be tried on October 6, 1975."
On October 6, 1975, appellant failed to appear for trial, and a bench warrant was issued for his arrest. He was not found until December 26, 1975, when the bench warrant was executed and appellant was taken into custody.
After appellant's arrest on the court issued bench warrant, the Public Defender was substituted as defense counsel; and trial was set for February 10, 1976. On that day, however, appellant's newly acquired counsel obtained still another continuance. The reason given in support of this motion was that counsel was "not ready." The written application, which appellant signed, recited: "This case shall be tried on March 2." Appellant also executed at this time an express waiver of his right to a speedy trial.
Prior to trial on March 2, 1976, defense counsel filed an application to dismiss under Rule 1100. This was heard on March 2, 1976 and was denied. Trial commenced on the following day, March 3, 1976.
The foregoing chronology demonstrates that 96 days had elapsed between April 24, 1975 and July 29, 1975. Because the continuance requested by appellant was from July 29, 1975 to the specific date of October 6, 1975, the Commonwealth was chargeable with only an additional thirty days. See: Pa.R.Crim.P. 1100(d)(2). After taking extensive testimony, the lower court found that appellant had been unavailable for trial from October 6, 1975 until December 26,
[ 268 Pa. Super. Page 51975]
. The evidence presented at the pre-trial hearing amply supports this conclusion.*fn6 This period of time, therefore, was properly excluded from the 180 day computation.
Trial was thereafter set for February 10, 1976, 46 days after appellant's arrest on the court's bench warrant. On February 10, 1976, which was the 172nd day, appellant requested a final postponement and agreed to a trial date of March 2, 1976. He also waived expressly at that time his right to a speedy trial. Having waived this right and having agreed to a trial date beyond the expiration of the 180 day period, appellant consented to and cannot complain of this final delay. This period was not chargeable to the Commonwealth and did not compel a dismissal of the charges. Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975). It can be seen, therefore, that appellant's trial clearly did not violate the ...