No. 2584 PHILADELPHIA, 1981, Appeal from the PCHA Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 758 November Term, 1974.
John Albert Wetzel, Philadelphia, for appellant.
David DaCosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cavanaugh and Cirillo, JJ.
[ 306 Pa. Super. Page 385]
The appellant, Michael Franklin, was charged with criminal conspiracy, possessing an instrument of crime, robbery, carrying firearms on a public street and carrying firearms without a license. These charges arose from an incident wherein the appellant and his co-defendant entered a Philadelphia grocery store, threatened the owner with a sawedoff shotgun and fled with a revolver and $135.00 in cash.
The charges were brought via the filing of a written complaint on October 18, 1974. Trial finally commenced on April 30, 1975, 193 days following the filing of the written complaint. During the period between the filing of the complaint and the trial date, four continuances were ordered due to the unavailability of courtrooms; one 3-day continuance due to a conflict in the schedule of appellant's counsel; and, one continuance due to the illness of co-defendant's counsel. The four continuances due to judicial delay alone prevented commencement of trial within 180 days.
On May 2, 1975, the jury returned a guilty verdict to criminal conspiracy, possession of an instrument of a crime generally and robbery. Motions in arrest of judgment and for new trial were denied on June 3, 1975; and, on that same date the appellant was sentenced to a term of imprisonment of seven and one-half (7 1/2) to fifteen (15) years on the robbery bill and a consecutive five (5) years' probation on the remaining charges. An appeal from the judgment of sentence was denied at Commonwealth v. Franklin, 252 Pa. Super. 619, 382 A.2d 747 (1978). Appellant's subsequent Writs of Habeas Corpus filed in both the Supreme Court of Pennsylvania and the United States District Court were denied as well.
Following retention of new counsel, appellant filed a petition for post conviction relief in the Court of Common Pleas of Philadelphia County. The prayer was denied and this appeal followed.
[ 306 Pa. Super. Page 386]
Appellant argues first that he is entitled to discharge because his right to a speedy trial under Pa.R.Crim.P. 1100 was denied. He concedes that this argument was not properly preserved for appeal because his trial counsel neglected to raise it initially in post trial motions; nevertheless, he maintains counsel's negligence constituted ineffectiveness which in turn is an extraordinary circumstance permitting appellant to raise this argument for the first time on appeal. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976). We agree with the appellant that counsel is deemed ineffective for failing to preserve a meritorious claim that defendant's right to a speedy trial was abridged. Commonwealth v. Foley, 269 Pa. Super. 71, 409 A.2d 68 (1979). We do not agree, however, that a determination of ineffectiveness of counsel necessarily depends upon a resolution of whether Rule 1100 was violated below. We find that despite a violation of appellant's right to a speedy trial, the state of the law as it existed during the lower court proceedings was such that appellant's trial counsel could not be deemed ineffective for refusing to object to a Rule 1100 violation.
Rule 1100(a)(2) of the Pa.R.Crim.P. sets forth that trial must commence no later than 180 days from the date of filing the written criminal complaint. Section (c)(1) of that same Rule provides:
"At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order ...