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COMMONWEALTH PENNSYLVANIA v. THOMAS V. FOLEY (08/24/79)

filed: August 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS V. FOLEY, APPELLANT



No. 1099 October Term 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Div., at No. 3877 of 1975.

COUNSEL

John G. McDougall, Philadelphia, for appellant.

D. Michael Emuryan, Assistant District Attorney, Chief, Appeals Division, Media, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion. Jacobs, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 269 Pa. Super. Page 73]

A jury convicted appellant of possession of a controlled substance, possession with intent to deliver a controlled substance, and conspiracy. After denying post-verdict motions, the lower court sentenced appellant to 11 1/2 to 23 months in prison. Appellant argues that his trial counsel was ineffective,*fn1 and that therefore he is entitled to a new trial. He also argues that his right to a speedy trial under Pa.R.Crim.P., Rule 1100, was violated, and that therefore he is entitled to be discharged. For reasons that will appear, we shall consider only appellant's Rule 1100 claim; since, however, it was not raised in appellant's post-verdict motions,*fn2 we shall consider it only in the context of whether appellant's counsel was ineffective in failing to raise it, thereby preserving it for appellate review.

The complaint was filed on June 10, 1975. The trial should therefore have begun by December 7, 1975.*fn3 Trial was set for November 18, 1975, but on October 24, 1975, the Commonwealth petitioned for an extension of time,*fn4 alleging

[ 269 Pa. Super. Page 74]

    that there were not enough judges to try the cases then pending. Appellant objected to the extension, alleging that the Commonwealth was not prepared to proceed with the trial, but on October 31, 1975, the lower court, without a hearing, granted the Commonwealth an extension to March 7, 1976. During this period, one continuance was granted to December 9, and another to January 19, 1976. Two other continuances, totaling 28 days, were granted because of the unavailability of defense counsel. Trial began on February 17, 1976, 252 days after the complaint was filed, or 72 days after the expiration of the 180 day period.

It is established that "[c]counsel's assistance is deemed constitutionally effective once the reviewing court is able to conclude that a particular course chosen had some reasonable basis designed to effectuate the client's interest." Commonwealth v. Sisco, 482 Pa. 459, 462, 393 A.2d 1197, 1199 (1978). Thus, "[t]he test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record," Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967) (emphasis in original), but rather whether any reasonable basis exists for counsel's choice. If any reasonable basis does exist, counsel will be deemed effective. Commonwealth v. Connolly, 478 Pa. 117, 122-23, 385 A.2d 1342, 1345 (1978); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978). Since no reasonable basis can exist for failing to raise and preserve a meritorious Rule 1100 claim, a failure to raise and preserve such a claim constitutes ineffectiveness, Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977), although counsel will not be held ineffective for failing to raise and preserve a meritless claim, see Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Lennox, 250 Pa. Super. 80, 378 A.2d 462 (1977).

The Commonwealth's petition for extension alleged that it was prepared for trial but that "the Common Pleas

[ 269 Pa. Super. Page 75]

Court of Delaware County has been unable to comply with the requests of the Office of the District Attorney of Delaware County to schedule a sufficient number of Judges through a sufficient number of trial days and/or weeks." In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Supreme ...


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