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COMMONWEALTH PENNSYLVANIA v. JEROME HARRIS (04/10/81)

filed: April 10, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JEROME HARRIS, APPELLANT



No. 742 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division. CC7505589A.

COUNSEL

John Halley, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, DiSalle and Montemuro, JJ.

Author: Montemuro

[ 286 Pa. Super. Page 136]

Appellant, Jerome Harris, was convicted by a jury of aggravated assault and attempted murder on March 29, 1976. His conviction was affirmed by the Superior Court on May 16, 1978. Subsequently, appellant filed a post-conviction petition alleging ineffective assistance of counsel for failing to preserve the issue of speedy trial for appeal. The lower court denied relief on July 12, 1979 and appellant now appeals this denial.

The original trial date should have been in mid-January of 1976. On January 5, 1976, the Commonwealth obtained an order from the trial court extending the run date to April 15, 1976. Appellant contends that neither he nor his counsel was given notice and therefore no opportunity to be heard on the extension petition until after it had already been signed and granted. Trial counsel subsequently filed a motion to dismiss premised on the Commonwealth's failure to comply with Rule 1100(c). The motion was denied and the trial commenced on March 23, 1976. Appellant's counsel

[ 286 Pa. Super. Page 137]

    failed to raise the Rule 1100(c) issue in his post-verdict motion and thus did not preserve this issue for appeal.

The standard of review involving claims of ineffective assistance of counsel is well settled. As the Pennsylvania Supreme Court has stated:

"In order to determine whether counsel's assistance was effective, we must be 'able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests.' Comm. ex rel, Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). (Emphasis in original.) However, counsel cannot be found ineffective for failing to assert a meritless claim. Only when an abandoned claim is of arguable merit must we inquire into counsel's basis for not pursuing it. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)."

Commonwealth v. Weathers El, 485 Pa. 28, 32, 400 A.2d 1295, 1297 (1979).

In the case before us, the petition to extend was granted to the Commonwealth without giving appellant the opportunity to contest it. Rule 1100(c) necessitates notice and a hearing before the grant of an extension of the run date. Therefore, appellant's claim that the ...


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