No. 2095 Philadelphia, 1981, No. 2096 Philadelphia, 1981, Appeal from the Order and Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1091-1092 and 1819-1823 May Term, 1977 and No. 2853 October Term, 1978
Paul Steven Diamond, Assistant District Attorney, Philadelphia, for Commonwealth.
Edward V. Schulgen, Philadelphia, for Dennis Goldwire.
Wickersham, Brosky and Wieand, JJ. Wieand, J., files concurring and dissenting statement.
[ 313 Pa. Super. Page 275]
These cross appeals are before us following a rather complicated procedural history, a brief summary of which follows. Criminal complaints were filed against Dennis Goldwire on April 28, 1977 and May 6, 1977 charging him with robbery, conspiracy, assault, theft, and unauthorized use of an auto.
Pursuant to Rule 1100, Mr. Goldwire had to be brought to trial by October 25, 1977 (as to the complaint filed on April 28, 1977) and by November 6, 1977 (as to the complaint filed on May 6, 1977). The charges were assigned two different case numbers, but were ordered to be consolidated on September 8, 1977. Trial commenced on December 1, 1977. Post-verdict motions challenging the timeliness of the trial were granted and the charges were dismissed for violation of Pennsylvania Rule of Criminal Procedure 1100. Specifically, the lower court found that petitions for extensions of time that were filed by the Commonwealth were improperly granted.
The Commonwealth appealed that decision to the Superior Court. We held in Commonwealth v. Goldwire, 279 Pa. Super. 451, 421 A.2d 286 (1980), that by failing to answer or contest the Commonwealth's petition for extension and failing to file a petition to dismiss, Mr. Goldwire has waived any contention that his speedy trial rights were violated. On that appeal, Mr. Goldwire had argued that if he were found to have waived the Rule 1100 argument, we should find that he had been denied effective assistance of counsel. We considered that argument but found the record inadequate and therefore remanded to the lower court saying,
[ 313 Pa. Super. Page 276]
In light of the incompleteness and conflicting versions of facts allegedly known to the parties and counsel, we are constrained to remand to the lower court for clarification of the record and for an evidentiary hearing on the effectiveness of appellant's trial counsel, especially as to his particular knowledge of the circumstances surrounding the petitions to extend.
Id., 279 Pa. Superior at 457, 421 A.2d at 289.
On remand, the lower court determined that counsel had been ineffective as to one of the cases. The charges were dismissed as to that case and sentence was imposed on the remaining counts. Both parties appealed. Because we agree with the lower court's assessment of the ineffective assistance of counsel claim, we affirm.
It is well settled that the standard for determining whether counsel was ineffective is whether or not a particular course of action chosen by counsel had some reasonable basis designed to effectuate the client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As we explained in Goldwire, supra, when applying this standard to the case before us, we must first determine whether appellant's claim that the Commonwealth was not duly diligent in bringing him to trial was meritorious. If it was, then counsel may be deemed ineffective since it would ...