Commonwealth v. Dill

WICKERSHAM, Judge,

dissenting:

I dissent.

On December 20, 1975 appellant Alfred Dill and one Walls entered a Philadelphia business at 10:00 a. m. and robbed at gunpoint two employees and two customers. Soon after the crime the police stopped the vehicle occupied by Dill and Walls and found guns, a customer’s stolen watch and the armed robbery cash proceeds of $1,775.00. The police took Dill and Walls back to the store where they were positively identified by the victims.

Both were convicted in a non-jury trial and sentenced. The majority concedes, as it must, the sufficiency of the evidence to support conviction of two robbery charges, possession of an instrument of crime and conspiracy.

In the present appeal, Dill acting through new counsel, claims that his trial counsel was ineffective in two respects and the majority is remanding this case back to the trial court for a hearing, and vacating the judgment of sentence. If a new judgment of sentence is imposed, Dill may again appeal.

No sound reason has been advanced by appellant for having a further hearing and I would affirm the judgment of sentence.

This case is a perfect example as to why our court has more than 4000 unresolved appeals on its docket.

The first reason for remand according to the majority is that Dill did not have a preliminary hearing on one of the robbery charges. The fact is that Dill was given a preliminary hearing on a robbery charge involving one of the four victims, Mr. Warren, who testified as to the other victims. How was the defendant possibly prejudiced when a later robbery charge was added involving a second named victim, Mr. Cobb. It was all the same case, the same robbery, the same group of four victims and two armed robbers.

We now remand this case and use up further valuable judicial time and energy in a pointless hearing.

The second reason suggested by the majority for remand makes even less sense. An extension of time to commence trial was granted by the lower court as provided by Rule 1100(c) Pa.R.Crim.P. The appellant contends that the court erred because it did not follow the criteria set forth in Comm. v. Mayfield, 469 Pa. 214, 264 A.2d 1345 (1976) (October 8).

The problem is that the Rule 1100 hearing held in the instant case occurred on June 15, 1976, months before the Mayfield criteria were published.¹

There being no reasonable basis in either prong of majority’s remand, there could have been a fortiori no ineffectiveness of trial counsel in failing to raise such matters in the lower court.²

I would affirm judgments of sentence.

1 . I would adopt the reasoning from Commonwealth’s brief, Page 6. “Defendant’s third claim is that the grant of an extension of time in which to try defendant, granted pursuant to Pa.R.Crim.P. 1100(c) on June 15, 1976, by the Honorable Edward J. Blake of the Court of Common Pleas of Philadelphia County, should be held invalid because the record of that hearing fails to comply with the record requirements of Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). This claim is waived, because defendant failed to raise it in written post-verdict motions or in a brief in support thereof. Pa.R.Crim.P. 1123; Commonwealth v. Twiggs, [, 485 Pa. 481, 402 A.2d 1374] supra.

Defendant, however, argues alternatively that if the claim is waived, then his counsel was ineffective for waiving it. (Brief for Appellant at 11). It is clear from the record that defendant had no meritorious Rule 1100 claim whatsoever, and so counsel was not ineffective for not preserving one. See Commonwealth v. Hubbard, supra, 472 Pa. at 277-279, 372 A.2d 687.

The pertinent procedural history is as follows: the complaint against defendant was issued on December 21, 1975; his mechanical rúndate thus became June 18, 1976. At the first listing for trial, on March 5, 1976, the case was continued, because it was “protracted,” to April 15, 1976. On April 15, the Commonwealth was ready to go to trial, but defendant was unprepared: his then-appointed counsel withdrew, new counsel was appointed, and the case was continued to May 27, 1976, for trial. On May 27, defendant’s motion to suppress was litigated; at its conclusion, according to a notation signed by the suppression judge and appearing on Bill of Information No. 1664, “Upon the request of the defendant, the Court disqualifies self and case is continued to 7/22/76-R446.” Since the case had been continued to a date past defendant’s mechanical rúndate, the Commonwealth timely filed a petition to extend under Rule 1100(c), and on June 15, 1976, Judge Blake granted it and extended the rúndate to July 22, 1976, the date to which the continuance had been granted. Trial commenced on that date.

The hearing in this case was held before the date Mayfield was decided (October 18, 1976). Consequently, the strict proof standards imposed by Mayfield are not applicable, and the docket entries and other notations in the certified record, may be accepted as establishing a definitive record. Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977). Although there is no transcript of the extension hearing in the record as certified to this Court, the record otherwise conclusively establishes the Commonwealth’s entitlement to the extension it received, and so a remand to supplement the record in this pre-Mayfield case is not necessary. On the last five trial listings before the rúndate, as early as sixty-four days before the rúndate, the Commonwealth was ready to go to trial but frustrated, first, by defense counsel’s withdrawal, and then by defendant’s motion to suppress and request for recusal of the suppression judge. See Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978) (due diligence established where Commonwealth was ready for trial fifty-three days before rúndate but frustrated in proceeding due to circumstances beyond its control). Furthermore, the extension granted was limited in duration to the date to which the case, at its last trial listing, had been continued. Clearly, this pre-Mayfield extension was properly granted. Defendant’s claim, therefore, is meritless.

2 . See Comm. v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) at 472 Pa. 277, 278 where it is said:

“In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

(Qounsel’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 initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis. In Maroney we noted that ‘a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.’ Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to.assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion.”