No. 1028 Philadelphia, 1982, Appeal from the PCHA Order of March 29, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 628-630 June Term, 1976
Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Montgomery and Cercone, JJ.
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Appellant was convicted of first degree murder and conspiracy and was sentenced to life in prison. Upon direct appeal this court affirmed the judgment of sentence. Commonwealth v. Blackburn, 272 Pa. Superior Ct. 1, 414 A.2d 638 (1979). The Supreme Court granted appellant's petition for allocatur and simultaneously remanded "for the appointment of new counsel and a determination of the claim that counsel failed to interpose objection to the violation of the Interstate Agreement on Detainers Act and to preserve this claim for appellate review." The trial court on remand conducted a hearing after which it found that, excluding delays occasioned by defense counsel's requests for continuances, appellant was tried within the time constraints of the Interstate Agreement on Detainers Act (hereafter referred to as the I.A.D.), and hence counsel was not ineffective in not pursuing a motion to discharge.
We see no need to recount either the procedural or factual history of this case as such has been detailed both in
[ 328 Pa. Super. Page 486]
our previous opinion in this case and the several opinions of the Court of Common Pleas of Philadelphia County. It suffices to state that appellant was tried one hundred thirty-nine (139) days after his return to Pennsylvania pursuant to the I.A.D. That Act, as adopted by this Commonwealth provided:
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but 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.
19 P.S. § 1431, Art. IV(c).*fn1 Appellant contends that since he was not tried within 120 days of his return to Pennsylvania he should have been discharged and that he would have been, except for counsel's failure to raise such claim. Therefore, he suggests that counsel was ineffective. We disagree.
As the record demonstrates, and the hearing court found, various continuances were requested and granted at the defense's request.*fn2 Hence, this case is clearly distinguishable from Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977), relied upon by appellant, where the record did not support or justify a finding that counsel was, or would be, unavailable for trial. Instead, the result here is controlled by Commonwealth v. Scott, 219 Pa. Superior Ct. 470, 281 A.2d 754 (1971), where we held that delay caused by counsel's request for a continuance, because of his need for additional time to prepare, amounted to "good cause" and it was "reasonable" to toll the I.A.D. period. Here, counsel's ...