Com. v. Bundridge

• Citation: 407 A.2d 406,268 Pa.Super. 1
• Parties: COMMONWEALTH of Pennsylvania v. Irving BUNDRIDGE, Appellant.
• Decision Date: 04 February 1980
• Court: Superior Court of Pennsylvania

Page 406

407 A.2d 406

268 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Irving BUNDRIDGE, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 26, 1978.

Decided July 6, 1979.

Petition for Allowance of Appeal Granted Feb. 4, 1980.

Andrew J. Achman, Pittsburgh, for appellant.

Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before CERCONE, WIEAND and HOFFMAN, JJ.

WIEAND, Judge:

Irving Bundridge, appellant, was tried by jury and convicted of bribery, ¹ criminal solicitation to commit perjury, ² tampering with a witness, ³ and violation of the Controlled Substance Act. ⁴ On appeal to this Court, the convictions were upheld, and a judgment of sentence was affirmed. ⁵ Thereafter, a P.C.H.A. petition was filed and denied following hearing. In the instant appeal from such denial, appellant argues that his first appellate counsel was ineffective for failing to pursue on direct appeal a pre-trial ruling which had denied his application to dismiss under Pa.R.Crim.P. 1100. We find no merit in this contention and affirm the order of the court below.

At the P.C.H.A. hearing, appellate counsel testified that the Rule 1100 claim had not been argued on direct appeal because, in his judgment, it lacked merit. If counsel failed to pursue a meritorious claim, i. e., one which would have required reversal of appellant's conviction, his representation of appellant would have been constitutionally ineffective. Commonwealth v. Danzy, 234 Pa.Super. 633, 340 A.2d 494 (1975). The burden of proving ineffectiveness, however, was on appellant. Commonwealth v. Klaric, --- Pa.Super. ---, 397 A.2d 1212 (1979); Commonwealth v. Sweitzer, --- Pa.Super. ---, 395 A.2d 1376 (1978); Commonwealth v. Barnes, 248 Pa.Super. 579, 375 A.2d 392 (1977). This burden appellant failed to carry. He has failed to show that counsel could have argued successfully that appellant's trial was held in violation of the 180 day requirement of Rule 1100. Instead, the record discloses a case, no longer uncommon, in which the defense and the defense alone had caused a series of trial delays and then attempted to take advantage of such delays to obtain a dismissal of the charges.

Criminal complaints were filed on April 24, 1975, and appellant was arrested the same day. On July 29, 1975, a trial postponement was granted at the request of appellant's privately retained counsel, who told the court that he required additional time within which to prepare and file pre-trial motions. The written application, containing the signatures of appellant and his counsel, recited unequivocally: "This case shall be tried on October 6, 1975."

On October 6, 1975, appellant failed to appear for trial, and a bench warrant was issued for his arrest. He was not found until December 26, 1975, when the bench warrant was executed and appellant was taken into custody.

After appellant's arrest on the court issued bench warrant, the Public Defender was substituted as defense counsel; and trial was set for February 10, 1976. On that day, however, appellant's newly acquired counsel obtained still another continuance. The reason given in support of this motion was that counsel was "not ready." The written application, which appellant signed, recited: "This case shall be tried on March 2." Appellant also executed at this time an express waiver of his right to a speedy trial.

Prior to trial on March 2, 1976, defense counsel filed an application to dismiss under Rule 1100. This was heard on March 2, 1976 and was denied. Trial commenced on the following day, March 3, 1976.

The foregoing chronology demonstrates that 96 days had elapsed between April 24, 1975 and July 29, 1975. Because the continuance requested by appellant was from July 29, 1975 to the specific date of October 6, 1975, the Commonwealth was chargeable with only an additional thirty days. See: Pa.R.Crim.P. 1100(d) (2). After taking extensive testimony, the lower court found that appellant had been unavailable for trial from October 6, 1975 until December 26, 1975. The evidence presented at the pre-trial hearing amply supports this conclusion. ⁶ This period of time, therefore, was properly excluded from the 180 day computation.

Trial was thereafter set for February 10, 1976, 46 days after appellant's arrest on the court's bench warrant. On February 10, 1976, which was the 172nd day, appellant requested a final postponement and agreed to a trial date of March 2, 1976. He also waived expressly at that time his right to a speedy trial. Having waived this right and having agreed to a trial date beyond the expiration of the 180 day period, appellant consented to and cannot complain of this final delay. This period was not chargeable to the Commonwealth and did not compel a dismissal of the charges. Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). It can be seen, therefore, that appellant's trial clearly did not violate the mandate of Rule 1100. Such an issue was meritless, and appellant's counsel was not ineffective for failing to pursue it on appeal. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant argues on appeal that he did not receive notice of the October 6, 1975 trial date. Appellant's contention that he had signed an incomplete application for continuance on July 29, 1975 and, therefore, did not know that trial had been set for October 6, 1975, was made for the first time at the P.C.H.A. hearing. The lower court rejected appellant's assertion and concluded that he had failed to prove a meritorious Rule 1100 claim which could have been pursued successfully by appellate counsel. This, too, is supported by the record. In this respect, it may be observed (1) that appellant's P.C.H.A. hearing testimony was not in accord with his pre-trial testimony and injected a contention which was not apparent from the record available on direct appeal; (2) that appellant did not suggest, much less prove, that his privately retained trial counsel lacked notice of the October 6th trial date; and (3) the lack of personal notice to appellant, if such had been the case, would not have altered the effect of his unavailability for trial from October 6 to December 26, 1975, during which period he could not be found.

The order dismissing appellant's P.C.H.A. petition is affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge, dissenting:

I dissent.

Appellant contends that the lower court erred in denying him relief after a hearing under the Post Conviction Hearing Act ("PCHA"). ¹ Specifically, he claims that his prior counsel was ineffective because he did not raise on direct appeal the properly preserved and meritorious issue of the trial court's denial of his Rule 1100(f) motion. From my review, I would conclude that the record is insufficient to determine whether this contention has merit and, accordingly, would remand for further proceedings.

Examination of the pre-trial record and notes of testimony reveals the following facts:

On April 24, 1975, Pittsburgh police arrested appellant and filed written criminal complaints charging him with bribery, ² tampering with witnesses, ³ criminal solicitation ⁴ to commit perjury and theft, and violation of the Controlled Substance Act. ⁵ Trial did not commence until March 3, 1976, 314 days later. On July 29, 1975, appellant's privately retained attorney submitted to the court a form Application for Postponement in which he moved for a continuance because he had not received notice of trial and wished to file various pre-trial motions. Appellant signed the Application. The Application stated: "THIS CASE SHALL BE TRIED ON Oct. 6, 1975;" the date was filled in at an unspecified time and by an unknown hand. Appellant was on bail at this time.

On October 6, 1975, appellant did not appear at trial, his bail bond was forfeited, and the court issued a bench warrant against him. On December 26, 1975, police arrested appellant for defaulting in his required appearance. ⁶ At an unspecified time, appellant's private counsel withdrew from the case; ⁷ sometime after this arrest, the Public Defender began to represent appellant.

On February 10, 1976, appellant, having been served with a subpoena to appear, again consented to a postponement by signing another form Application for Postponement which stated: "Defense counsel not ready" and "THIS CASE SHALL BE TRIED ON March 2." On that same day, appellant also signed a waiver of "his right to a speedy trial . . . for that reasonable period of time relating to the administrative processes of court in relisting for trial and for any delay in prosecution which may result therefrom." Appellant then filed a written Application to Quash the Indictment under Pa.R.Crim.P. 1100. At the March 2, 1976 hearing on this application, three police officers testified about their attempts to find appellant after October 6, 1975. Appellant testified that although he signed the July 29, 1975 Application he did not know that he was to appear on October 6 and never received any notice to appear. He was under the impression that the case was postponed, but his private attorney never contacted him about the new trial date or about his withdrawal from the case. ⁸ The private attorney did not testify. The Commonwealth produced the July 29 Application but did not produce any documentary evidence or testimony that appellant had been notified that he should appear on October 6. No notice to appear or subpoena is in the record. After hearing the testimony, the court denied appellant's Rule 1100 application.

On March 3, 1976, a jury trial commenced at which appellant was found guilty of bribery, tampering with a witness, criminal solicitation to commit perjury, and violation of the controlled substance act. The Public Defender then filed a post-verdict motion, which alleged, Inter alia, that "(t)he court erred in not granting defense counsel's timely Motion to Quash the Indictment." The court denied the...