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COMMONWEALTH PENNSYLVANIA v. EVANGELINE KING (02/17/83)

submitted: February 17, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
EVANGELINE KING, APPELLANT



No. 139 Philadelphia 1982, Appeal from the Judgment of Sentence, December 16, 1981, Court of Common Pleas, Philadelphia County, Criminal No. 1195 January Term, 1981.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cirillo, Johnson and Montemuro, JJ.

Author: Johnson

[ 317 Pa. Super. Page 197]

Evangeline King, appellant, was found guilty of simple assault following a non-jury trial before the Honorable Victor J. DiNubile on July 7, 1981 and immediately sentenced to six months non-reporting probation.

Post-trial motions were filed, nunc pro tunc, on August 10, 1981 alleging (1) the Commonwealth's petition to extend under Pa.R.Crim.P. 1100 was improperly granted, and (2) the insufficiency of the evidence to establish the offense of simple assault. The motions were denied on December 16, 1981, appellant was again sentenced to six months non-reporting probation and this appeal followed.

Appellant now renews her Rule 1100 claim, and, additionally, contends that (a) her jury waiver colloquy was inadequate and (b) trial counsel was ineffective for failing to preserve the jury waiver claim.

As to the Rule 1100 claim, we have examined the briefs of the parties, and the certified record including the Notes of Testimony dated July 7, 1981 involving the Commonwealth's petition to extend and we find the claim to be without merit. The opinion of Judge DiNubile adequately addresses and

[ 317 Pa. Super. Page 198]

    disposes of this issue, and we accept his disposition of the Rule 1100 issue for purposes of allocatur.

With respect to the jury trial waiver claim, we note initially that the substantive challenge to the colloquy was not presented to the trial court and would be waived, but for the ineffectiveness claim. Cf. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). Also, the Commonwealth concedes that the colloquy was inadequate. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

Nevertheless, the ineffectiveness of trial counsel is only established when the substantive claim has arguable merit and it is determined that trial counsel had no reasonable basis, designed to advance defendant's interest, for counsel's failure to raise the issue. ...


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