Commonwealth v. Foley , 269 Pa. Super. 71 ( 1979 )

SPAETH, Judge:

A jury convicted appellant of possession of a controlled substance, possession with intent to deliver a controlled substance, and conspiracy. After denying post-verdict motions, the lower court sentenced appellant to UV2 to 23 months in prison. Appellant argues that his trial counsel was ineffective,¹ and that therefore he is entitled to a new trial. He also argues that his right to a speedy trial under Pa.R.Crim.P., Rule 1100, was violated, and that therefore he is entitled to be discharged. For reasons that will appear, we shall consider only appellant’s Rule 1100 claim; since, however, it was not raised in appellant’s post-verdict motions,² we shall consider it only in the context of whether appellant’s counsel was ineffective in failing to raise it, thereby preserving it for appellate review.

The complaint was filed on June 10, 1975. The trial should therefore have begun by December 7, 1975.³ Trial was set for November 18, 1975, but on October 24, 1975, the Commonwealth petitioned for an extension of time,⁴ alleging that there were not enough judges to try the cases then pending. Appellant objected to the extension, alleging that the Commonwealth was not prepared to proceed with the trial, but on October 31, 1975, the lower court, without a hearing, granted the Commonwealth an extension to March 7,1976. During this period, one continuance was granted to December 9, and another to January 19, 1976. Two other continuances, totalling 28 days, were granted because of the unavailability of defense counsel. Trial began on February 17, 1976, 252 days after the complaint was filed, or 72 days after the expiration of the 180 day period.

It is established that “[cjounsel’s assistance is deemed constitutionally effective once the reviewing court is able to conclude that a particular course chosen had some reasonable basis designed to effectuate the client’s interest.” Commonwealth v. Sisco, 482 Pa. 459, 462, 393 A.2d 1197, 1199 (1978). Thus, “[t]he test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record,” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967) (emphasis in original), but rather whether any reasonable basis exists for counsel’s choice. If any reasonable basis does exist, counsel will be deemed effective. Commonwealth v. Connolly, 478 Pa. 117, 122-23, 385 A.2d 1342, 1345 (1978); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978). Since no reasonable basis can exist for failing to raise and preserve a meritorious Rule 1100 claim, a failure to raise and preserve such a claim constitutes ineffectiveness, Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977), although counsel will not be held ineffective for failing to raise and preserve a meritless claim, see Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Lennox, 250 Pa.Super. 80, 378 A.2d 462 (1977).

The Commonwealth’s petition for extension alleged that it was prepared for trial but that “the Common Pleas Court of Delaware County has been unable to comply with the requests of the Office of the District Attorney of Delaware County to schedule a sufficient number of Judges through a sufficient number of trial days and/or weeks.” In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Supreme Court held that for a petition for extension to be granted, the record must show:

(1) the 'due diligence’ of the prosecution, and (2) certification that the trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must show the causes of the court delay and the reasons why the delay cannot be avoided.”

Id., 469 Pa. at 222, 364 A.2d at 1349-50. See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978).

Here, since there was no hearing on the Commonwealth’s petition, the record does not make this showing. It does not follow, however, that counsel was ineffective for failing to raise and preserve a meritorious Rule 1100 claim, and that appellant must therefore be discharged. The Commonwealth’s petition was decided before the Supreme Court’s decision in Mayfield. In other pre-Mayfield cases we have remanded for an evidentiary hearing to afford the Commonwealth the opportunity to prove that the requirements of Mayfield were met. See Commonwealth v. Damanskis, 264 Pa.Super. 154, 399 A.2d 712 (1979); Commonwealth v. Stabler, 251 Pa.Super. 194, 380 A.2d 444 (1977). We shall do so here. If after a hearing the lower court finds that the Commonwealth has failed to prove that the requirements of Mayfield were met, the conclusion will follow that appellant’s counsel was ineffective, and appellant should be discharged. In that event the Commonwealth may appeal. If the lower court finds that the Commonwealth has proved that the requirements of Mayfield were met, the conclusion will follow that appellant’s counsel was not ineffective with respect to the Rule 1100 claim. In that event appellant may appeal, and on that appeal, may raise any issue presented and not decided on this appeal.⁵

So ordered.

PRICE, J., files a dissenting opinion. JACOBS, J., did not participate in the consideration or decision in this case.

1 . Appellant argues that his trial counsel was ineffective: (1) for failing to move to dismiss the charges because of the six month delay between the criminal incident and appellant’s arrest; (2) for failing to move for the disclosure of the identity of the confidential informant who allegedly arranged the sale of drugs and the production of this informant at trial; and (3) for filing post-verdict motions that were mere boilerplate in that they claimed that the verdict was contrary to the law and the evidence and that the Commonwealth had failed to meet its burden of proof.

2 . See note 1 supra.

3 . Pa.R.Crim.P., Rule 1100(a)(2) provides: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

4 . Pa.R.Crim.P., Rule 1100(c) provides: “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.”

5 . The record transmitted to this court from the lower court did not include the notes of testimony from appellant’s trial. Accordingly, had we reached it, we should have been unable to decide the issue of counsel’s alleged ineffectiveness with respect to the failure to move for the disclosure and production of the informant. See note 1 supra. If appellant wishes to raise this issue on a later appeal, he should make sure that the notes are included in the record.