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COMMONWEALTH PENNSYLVANIA v. GEORGE WEST (04/16/84)

submitted: April 16, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE WEST, APPELLANT



No. 00374 PHILADELPHIA, 1983, Appeal from an Order in the Court of Common Pleas, Criminal Division, of Montgomery County, No. 5258-78.

COUNSEL

Timothy O. Nolen, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Montemuro, Cercone and Hester, JJ.

Author: Hester

[ 334 Pa. Super. Page 289]

On April 11, 1979, following a trial by jury, appellant was convicted of criminal attempt, aggravated assault, recklessly endangering another person, possession of an instrument of crime, violation of the Pennsylvania Uniform Firearms Act, and criminal conspiracy. Timely post trial motions were filed and denied. On July 10, 1979, appellant was sentenced to a term of incarceration of not less than five nor more than ten years on the charge of criminal attempt. As to the other charges, appellant was placed on a combined probationary term of five years, to run consecutively to the criminal attempt sentence.

Appellant then filed a direct appeal to this Court solely alleging that the Commonwealth failed to bring him to trial within 180 days as required by Pa.R.Crim.P. 1100. We denied appellant's contention and affirmed the trial court's judgment of sentence. Commonwealth v. West, 287 Pa. Super. 587, 428 A.2d 250 (1980).

Appellant's counsel received notification of our decision on June 23, 1980, but neglected to forward such notice to appellant until July 18, 1980. Appellant received actual notice on July 21 or July 22, 1980.

[ 334 Pa. Super. Page 290]

Appellant thereafter filed a Petition for Allocatur Nunc Pro Tunc with the Supreme Court of Pennsylvania. That Court denied his petition without indicating whether the denial was the result of untimeliness or whether it was based on the merits.

On October 27, 1981, appellant petitioned the Court of Common Pleas of Montgomery County for relief pursuant to the Post Conviction Hearing Act (hereinafter P.C.H.A.).*fn1 Appellant alleged a violation of Rule 1100, that he was prejudiced when seen in handcuffs by jurors, and that counsel was ineffective for failing to timely notify him of his right to petition for review to the Supreme Court. The lower court dismissed appellant's P.C.H.A. petition. It is from this Order that appellant now appeals.

The Rule 1100 issue, though argued at the P.C.H.A. hearing, is not before us since it was not briefed or argued on appeal. It is accordingly waived. See Commonwealth v. Pittman, 320 Pa. Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979), cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). Appellant's next contention, that he was prejudiced when seen in handcuffs by jurors, has taken the form of two separate issues for this appeal. The first is that the trial court erred in refusing to grant a mistrial and the second is that trial counsel was ineffective for failing to ask the trial court for a cautionary instruction. These issues were adequately resolved by the opinion of the trial court. We therefore summarily dismiss them.

Prior to addressing whether counsel was ineffective for failing to timely notify appellant of his right to petition for allocatur, appellant's final P.C.H.A. allegation, we address appellant's assignment of error that prior counsel were ineffective for failing to raise the issue that the Commonwealth did not prove the ...


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