Commonwealth v. Blackburn

MANDERINO, Judge,

dissenting:

I dissent. As the majority correctly notes, appellant has raised in his pro se brief, a claim that his trial counsel was ineffective for failing to file a pretrial motion that appellant’s right to a speedy trial under the interstate Agreement on Detainers was violated. 42 Pa.C.S.A. § 9101, Art. IV(c). Appellant also states that appellate counsel was ineffective for not raising trial counsel’s ineffectiveness. Appellant cannot be held to have waived these issues for failing to raise it in the trial court since he is alleging the ineffectiveness of trial counsel.

If appellant’s allegations are true, there may be merit to his claim that counsel was ineffective for failing to argue that appellant was not tried within the 120-day period required under the interstate Agreement on Detainers. See Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977). On the face of the record, however, we cannot resolve the allegations of ineffectiveness. The matter should therefore be remanded to the trial court for the appointment of new counsel and a determination of the issues raised. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978).