NO. 37 HARRISBURG, 1980, Appeal from Order entered in the Court of Common Pleas, Criminal Division of York County on January 7, 1980 at No. 1666 October 1975.
Richard K. Renn, York, for appellant.
Richard H. Horn, Assistant District Attorney, York, did not file a brief on behalf of Commonwealth, appellee.
Price, Beck and Johnson, JJ.
[ 298 Pa. Super. Page 400]
Appellant was convicted after trial by jury of rape and kidnapping for his participation in a gang rape and was sentenced to a prison term of a minimum of eight years and a maximum of sixteen years. 18 Pa.C.S.A. Sections 2901, 3121. Post-trial motions were denied. This Court affirmed by per curiam order an appeal brought by new counsel from the judgment of sentence.*fn1 In so affirming, this Court rejected appellant's claims that a Commonwealth Petition for Extension of Time under Rule 1100, Pa.R.Crim.P. 1100, was not timely filed and that the lower court's finding of "due diligence" by the Commonwealth in attempting to bring the appellant to trial within the time required by Rule 1100 was without sufficient support in the evidence. This Court has also rejected appellant's claim that trial counsel was ineffective in that he failed to preserve for appeal the issue whether appellant's convictions were based on sufficient evidence.
With the aid of another attorney, appellant next sought relief under the Post Conviction Hearing Act (P.C.H.A.), 19 P.S. Section 1180-1 et seq. (Supp.1980). (Repealed eff. June 27, 1981). We now address appellant's appeal from the lower court's denial of his P.C.H.A. Petition.
[ 298 Pa. Super. Page 401]
The only issues raised by appellant in his Petition which were pursued at the P.C.H.A. hearing were claims that appellant's trial counsel was ineffective. Appellant contends that through ineffective assistance of counsel, he was denied the opportunity to prepare for his Rule 1100 hearing and to call witnesses for the hearing. Appellant also alleges that trial counsel was ineffective in that he failed to move for reconsideration of the sentence, and that he failed to preserve for appeal the issue of the sufficiency of the evidence with regard to both the kidnapping and rape convictions.
In considering appellant's three claims of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel's stewardship in light of available alternatives. The inquiry cases and counsel is deemed to have been effective once the court is able to conclude that counsel's action had a reasonable basis designed to effectuate the client's interests. Further, counsel is not ineffective in failing to assert a meritless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
In reviewing the claims on this appeal, we are mindful that a "PCHA petitioner has the burden of establishing his grounds for post-conviction relief . . . . In particular, the burden of establishing the ineffectiveness of trial counsel is on appellant." Commonwealth v. Sweitzer, 261 Pa. Super. 183, 395 A.2d 1376, 1380 (1978) (citations omitted). We find that appellant has failed to sustain his burden and affirm the order of the lower court.
In this Amended Petition Under Post Conviction Hearing Act, appellant alleges that the trial court violated his "due process" rights under the 5th and 14th Amendments to the United States Constitution, to a full and fair hearing concerning a Rule 1100 issue when the Court convened the
[ 298 Pa. Super. Page 402]
hearing on March 25, 1976, without reasonable advance notice, rather than on its scheduled date of April 8, 1976. He further asserts that his trial counsel was ineffective in that he did not preserve this issue for appeal by timely objection, and by filing an appropriate post-trial motion and brief on this issue.
The circumstances surrounding the Rule 1100 hearing, as revealed by the record, were the following. There were forty-six days between the filing of the criminal complaint against the appellant and his arrest. On March 22, 1976, the 180th day after filing of the complaint, the Commonwealth filed a timely Petition to Extend the Time for Commencement of Trial, alleging that the forty-six day period should properly be excluded because appellant had been unavailable. Although the case had been set for trial on March 25, 1976, the trial judge, mistakenly thinking that trial was to begin during the April term, scheduled a hearing on the Commonwealth's Petition to Extend for April 8, 1976. When the parties appeared in court for trial on March 25, 1976, the Commonwealth moved that the trial judge take testimony forthwith on its Petition. The trial court granted this motion and took testimony on the petition after the following exchange:
THE COURT: . . . Mr. Noll [Appellant's trial counsel], do you have any serious objections ...