March 11, 1983
COMMONWEALTH OF PENNSYLVANIA
WALTER J. STORY, APPELLANT
No. 490 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 7507684.
Before Cavanaugh, Rowley and Montgomery, JJ.
Appellant Walter J. Story was convicted on March 10, 1976, of robbery, recklessly endangering another person and various firearms violations following a jury trial before the Honorable Donald Ziegler. Following the denial of post-verdict motions and sentencing, he filed a direct appeal to this court. Judgment of sentence was affirmed and allocatur was denied by the Supreme Court. On August 27, 1979, appellant filed a petition under the Post Conviction Hearing Act, 19 P.S. § 1180-1, et seq., in which he alleged that his counsel was ineffective for failing to pursue speedy trial claims under both the Interstate Agreement on Detainers Act, 42 Pa.C.S.A. § 9101, and Pa.R.Crim.P. 1100. After a hearing, the Honorable James F. Clarke denied post-conviction relief, and appellant filed the instant appeal. We affirm.
Appellant was initially arrested on a complaint filed on November 1, 1974. Following a preliminary hearing and indictment by the grand jury, he filed a motion to quash the indictment on the ground that he was denied his right to counsel at the preliminary hearing. A hearing on this motion was scheduled for the day of trial, March 5, 1975. On March 3, 1975, appellant requested a postponement because his counsel had another jury trial listed for the same day. This postponement was granted and trial was set for April 7, 1975. On April 3, 1975, appellant requested another postponement because his brother had just been convicted and sentenced to death in a case which generated widespread publicity. At the same time, appellant agreed in writing to waive his right to a speedy trial. The trial was rescheduled to June 9, 1975. By that time, appellant had been transferred to a federal prison in connection with another case and the Commonwealth had begun proceedings under the Interstate Agreement on Detainers Act. On August 12, 1975, appellant was received at the Allegheny County Jail and on September 10, 1975, the original indictment was quashed. The following day, the charges were reinstituted in a new complaint. Trial on the new complaint began on January 7, 1976, with the hearing of pretrial motions which had been reserved for time of trial. This trial ended in the grant of a mistrial at appellant's request. A second trial began on January 12, 1976, and it, too, ended in a mistrial when the jury was unable to reach a verdict. On March 8, 1976, trial commenced for the third time and appellant was found guilty of all charges. Although a direct appeal was filed, these issues were not raised therein.
Appellant first argues that Pa.R.Crim.P. 1100 was violated because trial on the first complaint did not commence within the 180 days required by that rule. There is no dispute that more than 180 days elapsed between November 1, 1974, the date the complaint was filed, and September 10, 1975, the date the motion to quash was granted. The first two scheduled trial dates were, however, well within the 180 days mandated by Rule 1100. The trial was not held on either of those dates because appellant requested postponements, the second of which included a written waiver of appellant's speedy trial rights. Since appellant presented no evidence that would cast any doubt on the validity of this written waiver, we must consider it valid. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). In addition, the waiver did not confine itself solely to a specific period of time and is, therefore, a general waiver of appellant's Rule 1100 rights. Commonwealth v. Scott, 272 Pa. Super. 236, 414 A.2d 1095 (1979). Thus, since appellant had already waived his Rule 1100 rights, any claim that these rights had been violated was meritless. Counsel cannot be deemed ineffective for failing to raise meritless claims. Commonwealth v. Silvis, 307 Pa. Super. 75, 452 A.2d 1045 (1982).
Appellant further argues that trial on the second complaint was untimely under the Interstate Agreement on Detainers Act, 42 Pa.C.S.A. § 9101, which provides, in the applicable section that, when a person is transferred pursuant to that act, trial must take place within 120 days of the person's arrival in the receiving state. Appellant argues, therefore, that his trial was untimely because it did not take place within 120 days of August 12, 1975. We agree, however, with the trial court that computation of this time must begin with the date the second complaint was filed, and therefore, appellant's trial did, indeed, commence within the time limits of the Act.
The time limitations contained in the Interstate Agreement on Detainers Act are not of constitutional dimension but, like Rule 1100, provide an administrative method of implementing the constitutional guarantee of a speedy trial. Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971); Commonwealth v. Mitchell, 283 Pa. Super. 455, 424 A.2d 897 (1981). Because the Act is so similar to Rule 1100, our Supreme Court has held that computation of time for the purposes of the Act is the same as the computation of time under Rule 1100. Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977). When a complaint is dismissed or an indictment quashed and the case is reinstituted by means of a new complaint, a new 180-day period under Rule 1100 begins to run provided the first complaint is properly dismissed and there is no evidence of an attempt by the Commonwealth to circumvent Rule 1100. Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982). Thus, because the original indictment was quashed on appellant's own motion, the time period under both Rule 1100 and the Interstate Agreement on Detainers Act begins on the date the new complaint is filed, or September 11, 1975. Commonwealth v. Lodise, 276 Pa. Super. 484, 419 A.2d 561 (1980). Trial commenced, with the hearing of motions reserved for time of trial, on January 7, 1976. Commonwealth v. Haddad, 256 Pa. Super. 176, 389 A.2d 658 (1978). Therefore, 120 days had not elapsed when trial commenced. Since appellant's claim of a violation of the Act is without merit, counsel was not ineffective for failing to assert it. Commonwealth v. Silvis, supra.
The order of the trial court denying post-conviction relief is, therefore, affirmed.
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