No. 2470 Philadelphia 1983, No. 2471 Philadelphia 1983, Appeals from the Judgment of Sentence and the P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 867-869 May Term 1976.
Marilyn J. Gelb, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Brosky and Tamilia, JJ.
[ 339 Pa. Super. Page 217]
Appellant Charles Bradford was arrested on April 26, 1976, and was subsequently charged with rape, unlawful restraint, and simple assault. Appellant was tried on January 18, 1977 by the Honorable Alfred J. DiBona, Jr., sitting without a jury, and convicted of all three charges. Post-verdict motions were filed and subsequently denied. On October 5, 1977, Judge DiBona sentenced appellant to five (5) to ten (10) years imprisonment for rape, and to two (2) years concurrent probation for unlawful restraint and simple assault.
Appellant filed a pro se notice of appeal to this court requesting that counsel be appointed to represent him. The Public Defender's Association was appointed to perfect appellant's appeal, but upon request to the court, the Association was permitted to withdraw its appearance. Two more attorneys were appointed to represent appellant on appeal; however, neither attorney filed a brief on appellant's behalf. On March 27, 1979, this court dismissed appellant's appeal for failure to proceed.
[ 339 Pa. Super. Page 218]
On October 31, 1979, appellant petitioned for collateral relief under the Post Conviction Hearing Act.*fn1 An evidentiary hearing was held before the Honorable Edward J. Blake on December 17, 1982. On September 15, 1983, Judge Blake vacated appellant's conviction and sentence on the unlawful restraint charge and permitted appellant to petition this court for leave to appeal nunc pro tunc from the judgment of sentence imposed by Judge DiBona on October 5, 1977. All other claims for relief were denied. Appellant now appeals nunc pro tunc from the judgment of sentence of October 5, 1977, and from Judge Blake's order of September 15, 1983 partially denying the relief he sought in his P.C.H.A. petition.
Appellant presents the following issues for our consideration:
I. Where appellant was not brought to trial timely pursuant to Rule 1100, and where trial counsel contested the Commonwealth's petition to extend, and filed a petition to dismiss, was post-verdict motions counsel ineffective for failure to argue trial counsel's assignment of error and was appellant thereby deprived of effective counsel in derogation of the Sixth and Fourteenth Amendments and the applicable provisions of the Pennsylvania Constitution?
II. Where trial counsel announced his unpreparedness to go to trial, and failed to investigate the necessity for locating and subpoenaing an eye-witness, was appellant denied the effective assistance of counsel under the Sixth and Fourteenth Amendments and the applicable provisions of the Pennsylvania Constitution?
Brief for Appellant at v.
In his first issue, appellant avers that he was not brought to trial timely, pursuant to Pa.R.Crim.P. No. 1100. Specifically, appellant argues that the Commonwealth failed to show due diligence ...