Commonwealth v. Weber

389 A.2d 1107, 256 Pa. Super. 249, 6 A.L.R. 4th 1200, 1978 Pa. Super. LEXIS 3082
CourtSuperior Court of Pennsylvania
DecidedJuly 12, 1978
Docket1592
StatusPublished
Cited by11 cases

This text of 389 A.2d 1107 (Commonwealth v. Weber) 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. Weber, 389 A.2d 1107, 256 Pa. Super. 249, 6 A.L.R. 4th 1200, 1978 Pa. Super. LEXIS 3082 (Pa. Ct. App. 1978).

Opinions

HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his Rule 1100(f) application, Pa.R.Crim.P.; 19 P.S. Appendix.1 In the alternative, appellant argues that his trial [252]*252counsel was ineffective in failing to file a timely Rule 1100(f) application. We agree with the latter contention and, for the reasons which follow, order appellant discharged.2

On February 11, 1976, Philadelphia police arrested appellant and his brother3 for various violations of the Vehicle Code.4 As a result of an investigation by the police departments of Philadelphia and Lower Merion Township, Montgomery County, a complaint against appellant was filed on February 11, 1976, in Montgomery County. The complaint charged appellant with burglary,5 theft,6 receiving stolen property,7 and conspiracy.8

On August 9, 1976, the 180th day following the filing of the complaint, the Commonwealth filed an application to extend the time for the commencement of trial pursuant to Rule 1100(c).9 Following a hearing on August 19, 1976, the [253]*253lower court granted an extension until October 15, 1976.10 On November 29, 1976, the parties and the court agreed to proceed the next morning with pre-trial motions and trial. On November 30, 1976, the lower court conducted a suppression hearing. Following the court’s denial of the suppression motion, appellant’s trial counsel made an oral motion pursuant to Rule 1100(f) to dismiss the charges against appellant. The lower court denied the motion and then proceeded to conduct a jury trial waiver colloquy. Trial commenced after the court accepted the waiver.

On December 1, 1976, the court found appellant guilty of burglary, theft, and conspiracy. On December 6, 1976, the court sentenced appellant to concurrent terms of imprisonment for not less than six nor more than 23 months. This appeal followed.

Appellant contends that the lower court erroneously denied his application to dismiss the charges against him pursuant to Rule 1100(f). The Commonwealth responds that by failing to file the application to dismiss prior to the commencement of trial, appellant forfeited his right to a speedy trial under Rule 1100. The first question we must confront, therefore, is the timeliness of appellant’s assertion [254]*254of his Rule 1100 rights. Rule 1100(f) limits the time within which a defendant may apply for an order dismissing the charges against him to “any time before trial.” The appellate courts of Pennsylvania have often referred to the explanatory comments to Rule 1100(f) to aid in the interpretation of that portion of the Rule. Commonwealth v. Lamon-na, 473 Pa. 248, 373 A.2d 1355 (1977) (Concurring Opinion by EAGEN, C. J.); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977); Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977). The Comment provides:

“It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.” (Emphasis added).

In the instant case, the motion court ordered the rule to show cause pursuant to appellant’s motion to suppress returnable at the time of trial before the trial judge. According to Rule 1100, this order effectively reserved consideration of the motion for time of trial. Further, actual trial commenced within minutes of the suppression hearing. Therefore, for purposes of Rule 1100(f), we conclude that trial commenced at the outset of the suppression hearing on November 30, 1976. But see Commonwealth v. Byrd, supra (Concurring Opinion by HOFFMAN, J.). Because appellant’s trial counsel did not interpose his Rule 1100(f) claim until the close of the suppression hearing, we conclude that appellant waived his Rule 1100 claim by failing to raise it in a timely fashion.

In anticipation of our conclusion as to the foregoing issue, appellant alternatively contends that if trial counsel failed to preserve appellant’s Rule 1100 right, then appel[255]*255lant’s right to effective assistance of counsel was violated.11 In evaluating a claim of ineffective assistance of counsel, we must be guided by the standard articulated by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352 (1967): “Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon [256]*256as it is determined that trial counsel’s decisions had any reasonable basis.” (emphasis in original). In Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977), the Supreme Court, in delineating the process by which we assess an ineffectiveness claim stated, “It is only when the claim which was foregone was of arguable merit that we must make an inquiry into [whether there was a reasonable] basis for . . . counsel’s decision not to pursue the matter. . . . [0]nee we conclude that the omitted contention is of arguable merit, our inquiry into the substance of the claim ceases and shifts to an analysis of . counsel’s basis for decision.” See also, Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978) (Concurring Opinion by POMEROY, J.). In Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976), the Supreme Court addressed the scope of the inquiry into the basis for counsel’s decision: “Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.” (footnotes omitted).

We must now determine whether, according to the procedure outlined in

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Commonwealth v. Weber
389 A.2d 1107 (Superior Court of Pennsylvania, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
389 A.2d 1107, 256 Pa. Super. 249, 6 A.L.R. 4th 1200, 1978 Pa. Super. LEXIS 3082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-weber-pasuperct-1978.