Commonwealth v. McCoy , 259 Pa. Super. 277 ( 1978 )

SPAETH, Judge,

concurring and dissenting:

The cases in which the defendant claims that counsel was ineffective for failing to file a motion to dismiss under Rule 1100(f) resist orderly classification. For discussion here, however, two classes should be noted. In the first, the facts are clear; in the second, they are not. In the first, we discharge; in the second, we remand.

Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1978), is an example of the first class. There, after every doubtful fact was resolved in the Commonwealth's favor, still the record showed that

[t]he mandatory period could be extended, at most, sixty days, or until June 27, 1975. Trial . . . did not commence until August 25, 1975. Furthermore, the Commonwealth failed to file a petition for an extension of time within the prescribed period. Id., 250 Pa.Super. at 256, 378 A.2d at 924 (footnote omitted).

We ordered the defendant discharged, for we could

perceive no reasonable legal basis for an attorney to fail to object to a violation of his client’s right to speedy trial under Pa.R.Crim.P. 1100. Id.

Commonwealth v. Hairston, 256 Pa.Super. 153, 389 A.2d 647 (1978), is an example of the second class. There the facts were not clear because the speedy trial claim had not been raised in the lower court. However, as nearly as we could tell from such facts as were disclosed of record, it was possible that the defendant had not received a speedy trial. We therefore remanded for an evidentiary hearing:

At best, we are able to conclude only that the appellant’s claim was arguably valid. Thus, we can state only that the appellant’s trial counsel failed to object to a possible violation of his client’s right to a speedy trial. On this basis alone, we cannot hold that the appellant’s trial counsel was ineffective.

We recognize that an attorney might decide not to seek redress for a possible speedy trial violation in order to pursue some other alternative designed to effectuate his client’s interests. For example, an attorney might be faced with a situation where the record does not reveal whether or not the Commonwealth exercised due diligence in seeking his client’s whereabouts during a period critical to a speedy trial determination. Since the attorney is not certain that a speedy trial violation has occurred, we believe that he might reasonably advise his client to waive the possible violation of his client’s right to a speedy trial in order to gain some concession from the Commonwealth which he believes is favorable to his client. Under those circumstances, if the alternative pursued by counsel is reasonable, then we would conclude that counsel effectively assisted his client. At 649. [N.B. This assumes

PRICE, J.’s opinion will be majority, not, as now, dissent.]

This case is a case of the second class. As in Hairston, we know enough to conclude that appellant's claim is "arguably valid," but we do not know enough to decide the claim on its merits because it was not raised below. Also as in Hairston, we can imagine that counsel "might reasonably advise his client to waive the possible violation of his client's right to a speedy trial." With reference to this second point, the Commonwealth argues that "[counsel's] chosen course had more than a reasonable basis." Brief for Commonwealth at 9. The basis for this argument is: appellant has a long criminal record; the case against him was strong, especially after his motion to suppress evidence had been denied; the plea agreement offered by the Commonwealth was attractive; and the number of days to be excluded from the 270 day period was uncertain — given various facts raising a question of whether appellant was unavailable, as, for example, appellant's failure to appear, which raised a question of when the Commonwealth became aware (or in the exercise of due diligence should have become aware) of appellant's whereabouts. Brief for Commonwealth at 9-11.

Instead of remanding for a hearing to develop these facts, and such other relevant facts as may exist but that we don't know about, which is what we did in Hairston, the majority has made a series of findings, at least two of which are contrary to the contentions of the respective parties. Specifically: The majority finds that "[a]ppellant was unavailable from March 25, 1974" (but query: what was the effect of the continuance granted then?), Majority at 827, and goes on to find that "when [a]ppellant was returned to Bucks County and arraigned, [he became] available from that time forward," id. Appellant, however, contends that "[o]n February 5, 1975, when the Commonwealth became aware of appellant's incarceration in Philadelphia, appellant became available under Rule 1100." Brief for Appellant at 10. In this regard, see Commonwealth v. Cunningham, 247 Pa.Super. 302, 372 A.2d 473 (1977) (defendant available from date located in another county prison, and detainer filed). Also, the majority finds that "[c]learly, the time between March 25, 1975 and April 9, 1975 is not excludable since it was a defense continuance under 30 days." Majority at 828. The Commonwealth, however, contends that "[the] continuance was due to [appellant's] unavailability in that he had no attorney." Brief for Commonwealth at 11. Finally, the majority makes other findings, regarding such matters as when the case was relisted for trial, and the availability of a courtroom; whether these are accurate, or are disputed by the parties, I cannot tell.

In my opinion we should simply remand for an evidentiary hearing with instructions to the hearing judge to determine whether appellant’s counsel had a reasonable basis for not filing a motion to dismiss under Rule 1100(f); we should not circumscribe the extent of the hearing judge’s inquiry by making our own findings of fact.

PRICE, J., joins in this opinion.