No. 863 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Venango County, Criminal Division, at SD No. 305-1978
James M. Greenfield, Franklin, for appellant.
Miles R. Lynn, Jr., Assistant District Attorney, Emlenton, for Commonwealth, appellee.
Price, Brosky and Montgomery, JJ. Montgomery, J., files concurring and dissenting opinion.
[ 300 Pa. Super. Page 562]
This appeal follows appellant's conviction on charges of theft and conspiracy to commit theft. Mr. Walentoski was tried before a jury in November, 1978. On appeal, he raises many issues, but basically he alleges that his trial counsel rendered him ineffective assistance and that the verdict is not supported by sufficient evidence. For the reasons that follow, we reverse and remand.
Mr. Walentoski is charged with having taken several items from a Sears warehouse with the assistance of a then Sears employee. That employee, a Mr. Myers, testified at the trial and admitted his participation in the theft of a dishwasher, hot water boiler, four tires, a floor jack, mechanics tools and a refrigerator. He said that he gave the items to Mr. Walentoski. Additional testimony was presented to show that the allegedly stolen goods were in fact missing from the warehouse. The jury convicted appellant of all charges, the grade of the offense depending on the value assigned to the goods by the jury.
We will first address Mr. Walentoski's claim that his trial counsel erred in joining in a Petition for Extension of Time filed by the Commonwealth. Appellant contends that the error mandates that he now be discharged.
The complaint against appellant was filed on April 27, 1978; the 180 days within which Pa.R.Crim.P. 1100 mandates that trial is to commence expired on October 24, 1978. On October 19, 1978, the Commonwealth filed its petition. A hearing was set for October 30, but was not held because appellant's counsel consented to the petition.
[ 300 Pa. Super. Page 563]
We will review the standard to be applied in assessing claims of ineffective assistance of counsel.*fn1
In Commonwealth v. Sullivan, 450 Pa. 273, 277, 299 A.2d 608, 610, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973), our Supreme Court explained:
The Commonwealth's Petition for Extension of Time was a form petition. It alleged that the Commonwealth had exercised due diligence in bringing the case to trial, but did not aver facts in support of the contention. This mere assertion of due diligence does not justify the grant of an extension. See Commonwealth v. Antonuccio, 257 Pa. Super. 535, 390 A.2d 1366 (1978); Commonwealth v. Schaszberger, 285 Pa. Super. 586, 428 A.2d 200 (1981). See also Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976); Commonwealth v. Delpiano, 290 Pa. Super. 510, 434 A.2d 1260 (1981) (Concurring Opinion of Brosky, J.). Cf. Commonwealth v. Myers, 259 Pa. Super. 196, 393 A.2d 785 (1978).
Appellant's trial counsel joined in this deficient petition thereby relieving the Commonwealth of its burden of proof. If it were clear to us that the Commonwealth could not have ...