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COMMONWEALTH PENNSYLVANIA v. DEREK GREEN (05/04/87)

submitted: May 4, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
DEREK GREEN, APPELLANT



Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1274-1277 January, 1974.

COUNSEL

Martha Aleo, Philadelphia, for appellant.

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

Wieand, Olszewski and Hoffman, JJ.

Author: Wieand

[ 365 Pa. Super. Page 143]

Derek Green was tried by jury and was found guilty of robbery, criminal conspiracy, and possession of an instrument of crime because of his participation in a holdup of a bar at 18th and Callowhill Streets, Philadelphia, on January

[ 365 Pa. Super. Page 1444]

, 1974. Post-trial motions were denied, and a sentence of imprisonment was imposed. On direct appeal, the Superior Court affirmed. Commonwealth v. Green, 264 Pa. Super. 472, 400 A.2d 182 (1979). A petition for allocatur was denied by the Supreme Court.

A P.C.H.A. petition was filed on May 1, 1980, but this petition was subsequently withdrawn. A second P.C.H.A. petition was filed on March 2, 1984. In this second petition, Green alleged that his state and federal speedy trial rights had been violated. Counsel was appointed and filed a brief. However, the P.C.H.A. court denied the petition without a hearing. This appeal followed.

On direct appeal from the judgment of sentence, Green conceded that he had waived the provisions of Pa.R.Crim.P. 1100 but argued that his rights had nonetheless been violated by the granting of an open-ended continuance. This argument was rejected because Green's admitted waiver of Rule 1100 was for an indefinite period of time.*fn1 Moreover, the Court observed, Green had never filed an application to have the charges dismissed. Appellant now argues that he is entitled to an evidentiary hearing to determine whether trial counsel rendered ineffective assistance because he failed to argue on direct appeal that Green's Sixth Amendment right to a speedy trial had been violated.

Although Rule 1100 was designed to implement the constitutional right to a speedy trial, the Sixth Amendment may, nevertheless, "provide a separate basis for asserting a claim of undue delay in appropriate cases." Jones v. Commonwealth, 495 Pa. 490, 499, 434 A.2d 1197, 1201 (1981). In general, however, the time constraints of Rule 1100 are more demanding and impose upon the Commonwealth stricter time requirements than those judicial decisions interpreting the speedy trial guarantee contained in the Sixth

[ 365 Pa. Super. Page 145]

Amendment of the Constitution of the United States. See, e.g., Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Thus, where a criminal defendant has validly waived his speedy trial rights under Rule 1100 for an indefinite period, his counsel will not be deemed ineffective for failing to argue that ...


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