Commonwealth v. Costigan

416 A.2d 1018, 272 Pa. Super. 520, 1979 Pa. Super. LEXIS 3316
CourtSuperior Court of Pennsylvania
DecidedDecember 7, 1979
Docket18
StatusPublished
Cited by4 cases

This text of 416 A.2d 1018 (Commonwealth v. Costigan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Costigan, 416 A.2d 1018, 272 Pa. Super. 520, 1979 Pa. Super. LEXIS 3316 (Pa. Ct. App. 1979).

Opinions

[523]*523CERCONE, President Judge:

The instant appeal arises from the judgment of sentence the court imposed upon appellant for robbery.1 Before us on appeal are two questions for our review: (1) whether the court below was correct in denying appellant relief under Pa.R.Crim.P. 1100; and (2) whether the suppression court correctly found the Commonwealth sustained its burden of proving a valid consensual search to support the police’s seizure of a weapon located in the trunk of the auto in appellant’s custody. Since we find no error in the proceedings in the court below, we affirm.

I.

Appellant first contends that he is entitled to discharge because his right to a speedy trial under Pa.R.Crim.P. 1100 was denied him. This argument has three facets which we shall treat separately.

The complaint charging appellant with robbery was filed on July 3, 1974; accordingly, the Commonwealth had until December 30, 1974 to bring appellant to trial.2 However, on November 15,1974 well within the 180 days permitted by the rule, the Commonwealth filed a petition for an extension of time of ninety days to bring appellant to trial pursuant to subsection (c) of Rule 1100.3 The petition recit[524]*524ed the lack of available courtroom and judicial manpower to try the case within 180 days. Neither appellant nor counsel on his behalf appeared at the hearing on the extension petition, and the Commonwealth’s request was granted. In its order granting the extension the court recited as a fact that the Commonwealth “proved that the said application [for an extension of time] was served on defendant . . .” On February 10, 1975, appellant’s counsel filed an “Application to Suppress Evidence and to Quash Indictments,” alleging, inter alia, that the prior listing of appellant’s trial on January 6, 1975, was “in excess of his guaranty to a speedy trial.”4 Ultimately, appellant was tried in June, 1975, but it is conceded that the periods of delay occurring after January, 1975, are not attributable to the Commonwealth.

First, appellant contends that he should have been discharged pursuant to Rule 1100 because the Commonwealth’s petition for an extension recited only the standard, boilerplate justifications for an extension which this court criticized in Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976). It must be noted, of course, that the judge hearing the petition stated in his order granting it that he “considered all the evidence” supporting the petition, thus indicating that the general allegations of the petition were [525]*525supplemented by evidence.5 In any event, appellant did not appear and contest the Commonwealth’s petition for an extension. Consequently, the question of whether the Commonwealth failed to offer adequate justification for the extension of time has been waived. Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977). See also Commonwealth v. Wilson, 258 Pa.Super. 231, 392 A.2d 769 (1978).

Second, appellant contends that he should have been discharged because the Commonwealth did not serve him with a copy of its petition for an extension pursuant to Rule 1100(c). Cf. Commonwealth v. Stabler, 251 Pa.Super. 194, 380 A.2d 444 (1977). Once again, the court hearing the petition expressly found as a fact that appellant had been served with the petition. In any event, appellant did not challenge this finding of fact in his written application to quash the indictment or orally at the hearing thereon. Indeed there were no references whatsoever to the petition for an extension, the order granting it or, most importantly, the alleged failure of the Commonwealth to serve the petition on appellant through his counsel. Therefore, insofar as this direct appeal is concerned this issue has also been waived. Commonwealth v. Johnson, 261 Pa.Super 327, 330, 396 A.2d 422, 423-24 (1978).

Third, appellant contends that trial counsel was ineffective in failing to raise the issue of service of a copy of the petition to extend in his application to quash the indictment. In this regard, the often-recited standard for review of counsel’s effectiveness was stated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

“[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course [526]*526chosen by counsel had some reasonable basis designed to effectuate his client’s interests.”

Coupled with the fact that counsel is not required to file baseless or frivolous motions in order to advance his client’s interests, we find counsel was effective in this case. See, e. g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). As we pointed out above, the extension hearing court found as a fact included in its order that appellant and counsel failed to challenge the petition for extension despite having been served with a copy. Trial counsel, Clarence I. Bell, Jr., did not enter an appearance for appellant until January 5, 1975,6 and, on the face of the record, a challenge to service would have appeared to have been baseless from Mr.Bell’s viewpoint. Hence, his failure to challenge the adequacy of notice of the extension hearing had a reasonable basis. Although we have complained of the inadequacy of untranscribed hearings on Rule 1100 motions for the purposes of appellate review in cases such as Commonwealth v. Wareham, supra, and Commonwealth v. Ray, supra, we have never held that transcription of the record is á prerequisite to a valid hearing. Indeed, in Commonwealth v. Johnson, 261 Pa.Super. 327, 396 A.2d 422 (1978), we found an entry in a hearing court’s order that appellant had been served with a copy of the petition for extension sufficient to prove that fact. Certainly as the case law existed in January of 1975, trial counsel had no basis for assuming that he should go behind the entries of record to determine whether they were without foundation.

Finally, we do not intend to imply that if appellant did not receive notice of the extension hearing contrary to the Commonwealth’s allegations in the ex parte extension hearing, he is without a remedy; we only find that such a [527]*527remedy is beyond the scope of direct review at this time.

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Related

Commonwealth v. Cullen
489 A.2d 929 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Markman
467 A.2d 336 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Meoli
452 A.2d 1032 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Costigan
416 A.2d 1018 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
416 A.2d 1018, 272 Pa. Super. 520, 1979 Pa. Super. LEXIS 3316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-costigan-pasuperct-1979.