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COMMONWEALTH PENNSYLVANIA v. MARTIN DIGGS (02/03/84)

submitted: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MARTIN DIGGS, APPELLANT



NO. 03659 PHILADELPHIA, 1982, Appeal from the PCHA Order of November 19, 1982, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 652-656 May Term, 1982.

COUNSEL

Gilbert E. Toll, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, Beck, and Johnson, JJ.

Author: Beck

[ 334 Pa. Super. Page 270]

This matter is before this Court on appeal from the denial of relief under the Post Conviction Hearing Act (PCHA). In brief, the history of the case is as follows. In October 1975, while incarcerated in a Maryland prison, appellant Martin Diggs filed a request pursuant to Article III of the Interstate Agreement on Detainers, 42 Pa.C.S. ยง 9101 (hereinafter "Agreement"), for an "immediate and fair trial" on charges outstanding against appellant in Philadelphia. The charges arose out of the gunpoint robbery of a Philadelphia dairy in 1973.*fn1 Appellant was tried in May 1976 and convicted of six counts of aggravated robbery and one count of burglary. A prison sentence and concurrent probationary terms were imposed. This Court affirmed on direct appeal. Commonwealth v. Diggs, 260 Pa. Super. 349, 394 A.2d 586 (1978). Appellant filed his PCHA petition in 1979; he brings the instant appeal from the court's November 19, 1982 order denying relief.

Appellant's contention at this stage of the proceedings is that he was not timely tried pursuant to Article III(a) of the Agreement. He raises this issue in the context of a claim that post-trial and direct appeal counsel were ineffective for not pursuing the issue (it was last raised by trial counsel in

[ 334 Pa. Super. Page 271]

    pretrial motions). We affirm the PCHA court's denial of relief.

It is settled law that counsel will not be found ineffective for failing to assert a baseless claim. Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980). Only if the underlying claim has arguable merit need we inquire further into the reasonableness of counsel's actions. Commonwealth v. Tate, 299 Pa. Super. 518, 445 A.2d 1250 (1982). We find that the claim that appellant was not timely tried is meritless.

Article III(a) of the Agreement provides that a prisoner "shall be brought to trial within 180 days" after he files an appropriate request for disposition of the charges which are the subject of an outstanding detainer. This 180-day limit contains an important qualification: "Provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." In the instant case, the request for trial was received on October 14, 1975, making the initial run date April 12, 1976. Trial commenced on May 6, 1976. Several continuances granted upon defense counsel's request account for the 25-day delay. Appellant contends that these continuances do not operate to extend the 180-day period because there was no showing of good cause in open court. We disagree.

We note at the outset that as a general matter, the grant or denial of a continuance is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Commonwealth v. Wolfe, 301 Pa. Super. 187, 447 A.2d 305 (1982); Commonwealth v. Mallon, 279 Pa. Super. 350, 421 A.2d 234 (1980).

In the instant case, three continuances were granted. On March 30, 1976, the case was continued to April 5, 1976 on defense counsel's request for additional time to complete his investigation. This continuance took place in open court with the defendant present. The next day, ...


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