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COMMONWEALTH PENNSYLVANIA v. TERRY BOYER (04/16/82)

filed: April 16, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
TERRY BOYER, APPELLANT



No. 823 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Cambria County at No. C-750 of 1976.

COUNSEL

Ronald P. Rusinak, Assistant Public Defender, Ebensburg, for appellant.

Gerard Long, District Attorney, Ebensburg, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 298 Pa. Super. Page 160]

This is an appeal from judgment of sentence for neglect to support a bastard child. 18 Pa.C.S. ยง 4323. This is the second time we have considered this appeal. The first time we remanded so that the lower court might appoint new counsel. Commonwealth v. Boyer, 277 Pa. Superior Ct. 82, 419 A.2d 671 (1980). New counsel was appointed, and he now argues, among other issues, that trial counsel was ineffective for failing to file an application for an order dismissing the charge on the ground that Pa.R.Crim.P. 1100 had been violated. We agree and therefore order appellant discharged.

[ 298 Pa. Super. Page 161]

The complaint against appellant was filed on July 19, 1976. The Commonwealth never applied under Rule 1100(c) for an order extending the time for trial; no period of time was excludable under Rule 1100(d); and appellant did not formally waive his Rule 1100 rights. The last day on which trial could properly have commenced was therefore January 15, 1977. In fact trial did not commence until April 7, 1977.

The Commonwealth admits that it never applied for an order extending the time for trial and that appellant's trial counsel failed to apply under Rule 1100(f) for an order dismissing the charge. It maintains, however, that the claim that trial counsel was therefore ineffective has been waived because it was not raised in appellant's post-verdict motions.

In Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978), the Supreme Court said:

Issues not raised in post-verdict motions will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception to this exists, however, when ineffective assistance of prior counsel is raised. The rule then is that ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Id., 478 Pa. at 624, 387 A.2d at 663 (footnote omitted).

The Court thus identified two situations. In the first situation the defendant is represented at trial by Lawyer A and at the post-verdict proceedings by Lawyer B. In this situation Lawyer B must raise the issue of Lawyer A's ineffectiveness in the post-verdict motions, or the issue will be held waived. In the second situation the defendant is represented at trial and at the post-verdict proceedings by Lawyer A; Lawyer B ...


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