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COMMONWEALTH PENNSYLVANIA v. JOSEPH MOYER (02/24/82)

submitted: February 24, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MOYER, APPELLANT



No. 2058 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, at No. 245 of 1981.

COUNSEL

Lewis J. Bott, Assistant Public Defender, Hazleton, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Hoffman

[ 301 Pa. Super. Page 415]

Appellant contends that counsel was ineffective in: (1) failing to explain the nature and consequences of a rule 1100 waiver and in signing and advising him to sign such a waiver, and (2) failing to file a suppression motion. Because we cannot determine from the record whether these ineffectiveness claims have arguable merit, we remand for an evidentiary hearing.

Appellant pled guilty, on May 26, 1981, to possession of a controlled substance with intent to deliver. He was sentenced on July 1, 1981. After obtaining new counsel, he petitioned to withdraw the guilty plea nunc pro tunc, alleging, among other grounds, ineffectiveness of trial counsel.

[ 301 Pa. Super. Page 416]

Without a hearing, the lower court denied the petition. This appeal followed.

I. Rule 1100

The Commonwealth filed the criminal complaint on September 24, 1980. In January 1981, before the rule 1100 run date, appellant and his counsel signed a waiver of rule 1100 rights, consenting to trial no later than June 24, 1981. Appellant's trial commenced May 26, 1981, within the time allowed by the waiver, but 244 days after the filing of the complaint.

Appellant contends that counsel was ineffective in failing to explain the nature and consequences of a rule 1100 waiver and in signing and advising him to sign such a waiver. "[C]counsel is deemed 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." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Because a violation of rule 1100 may result in "dismissing charges with prejudice," Pa.R.Crim.P. 1100(f), we must carefully scrutinize an attorney's advice to waive whatever rights a client may have under the rule. See Commonwealth v. Dozier, 258 Pa. Superior Ct. 367, 374, 392 A.2d 837, 841 (1978). A defendant may temporarily waive his rule 1100 rights, like the constitutional right to a speedy trial that it was designed to protect, by signing an appropriate statement explaining the nature of the rights he is waiving, "[s]o long as there is an indication, on the record, that the waiver is the [defendant's] informed and voluntary decision." Commonwealth v. Myrick, 468 Pa. 155, 160, 360 A.2d 598, 600 (1976). Accord, Commonwealth v. Rodriquez, 291 Pa. Superior Ct. 239, 435 A.2d 888 (1981). The signing of an appropriate waiver document is prima facie ...


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