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filed: October 26, 1979.


No. 1052 April Term 1978, Appeal from the Order (sentence) of the Court of Common Pleas of Erie County, Criminal Div., Nos. 634,635,636, and 637 of 1975.


William A. Dopierala, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Van der Voort, Spaeth and Watkins, JJ.

Author: Spaeth

[ 271 Pa. Super. Page 288]

Appellant was convicted in Erie County on charges arising from four robberies. On direct appeal*fn1 he argues 1) that his rights under Pa.R.Crim.P. 1100 were violated, and 2) that he was denied effective assistance of counsel at trial.


On February 10, 1975, complaints were filed charging appellant with four armed robberies. Therefore, under Pa.R.Crim.P. 1100(a) the Commonwealth had until August 9, 1975, to bring appellant to trial. Trial was scheduled for the May 1975 Term of Criminal Court. However, because appellant was incarcerated in the Allegheny County Jail, the Erie County District Attorney was required to petition for a writ of habeas corpus ad prosequendam to secure appellant's presence in Erie County. An appropriate court order issued on May 8 that was duly served on the superintendent of the Allegheny County Jail. On May 13 the superintendent responded in writing that he could not comply with the order because appellant was scheduled for trial in Allegheny County. In July 1975, the Erie County District Attorney filed a petition pursuant to Pa.R.Crim.P. 1100(c), seeking an extension of time for the commencement of appellant's trial. A hearing was held on July 25 at which the prosecuting assistant district attorney related the previous effort to try appellant in May, and pointed out that since Erie County did not employ continuous terms of criminal court and the next term did not begin until September, appellant could not be tried within the mandatory period prescribed by Rule 1100(a). On these facts, the lower court found that the Commonwealth had exercised due diligence in bringing appellant

[ 271 Pa. Super. Page 289]

    to trial, and granted an extension until the September Term.*fn2

Appellant relies on Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192 (1978), for the proposition that the lower court erred in finding that the Erie County District Attorney exercised due diligence. Clark, however, is distinguishable. There the Commonwealth neglected to file a timely petition for an extension of time; we expressly declined to decide whether the Commonwealth's efforts to try the defendant would have been diligent had such a petition been filed.*fn3 In the present case, the Commonwealth filed a timely petition for an extension of time. Furthermore, it made a reasonable effort to try appellant in the May 1975 Term but failed. Appellant admits that no criminal court terms were scheduled in Erie County during June, July, or August 1975. Since this case arose prior to the decision in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), we must view the judicial delay here with greater leniency than similar delays in cases arising after that decision. In the circumstances, we believe the lower court properly granted the Commonwealth an extension. Compare Commonwealth v. Coleman, 477 Pa. 400, 333 A.2d 1268 (1978); Commonwealth v. Warman, 260 Pa. Super. 130, 393 A.2d 1046 (1978); Commonwealth v. Lewis, 247 Pa. Super. 46, 371 A.2d 1318 (1977).*fn4

[ 271 Pa. Super. Page 290]

Appellant also argues that the lower court improperly granted the Commonwealth an extension of time because he was not personally notified of the petition, and had no knowledge that the public defender was representing him at the July 25 hearing. Rule 1100(c), however, did not require the Commonwealth to give appellant personal notice; it only required that a copy of the petition "be served upon the defendant through his attorney, if any . . . ." The record shows that on February 20, 1975, appellant applied for court-appointed counsel, and that on March 13, the public defender entered his appearance. Appellant does not argue that service upon the public defender was defective, or that the defendant's representation at the July 25 hearing was ineffective.*fn5


Appellant asserts that trial counsel was ineffective in 1) failing to include in his post-verdict motions objections to the Commonwealth's identification testimony; 2) failing to file a pre-trial motion to suppress appellant's confession; 3) failing to call alibi witnesses; 4) failing to participate in the empaneling of the jury; and 5) allowing consolidation of the charges. In reviewing these allegations, the standard to be applied is as follows:

"[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 interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." [Emphasis in original.]

[ 271 Pa. Super. Page 291]

    if available, were not beneficial to appellant's defense. The Supreme Court has stated that it is not the role of an appellate court "to speculate in order to determine the reasonableness of the alternative selected particularly where an evidentiary hearing could possibly elicit the reasons for counsel's decisions." Commonwealth v. Connolly, 478 Pa. 117, 123, 385 A.2d 1342, 1345 (1978). Consequently, we must vacate the judgment of sentence and remand the case so that an evidentiary hearing on the effectiveness of appellant's trial counsel may be held. See Commonwealth v. Mizell, 479 Pa. 31, 387 A.2d 819 (1978); Commonwealth v. Brown, 478 Pa. 628, 387 A.2d 665 (1978); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If the hearing court finds that trial counsel was ineffective, a new trial should be awarded. If the court finds that trial counsel was not ineffective, the judgment of sentence should be reinstated.

Judgment is vacated and the case remanded for further proceedings in accordance with this opinion.

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