Com. v. Roman

• Citation: 494 Pa. 440,431 A.2d 936
• Parties: COMMONWEALTH of Pennsylvania v. Gary ROMAN, Appellant.
• Decision Date: 02 July 1981
• Court: United States State Supreme Court of Pennsylvania

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431 A.2d 936 494 Pa. 440 COMMONWEALTH of Pennsylvania
v.
Gary ROMAN, Appellant. Supreme Court of Pennsylvania. Submitted March 2, 1981.
Decided July 2, 1981.

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[494 Pa. 442] Jesse E. Shearin, Jr., Greenville, for appellant.

Ross E. Cardas, Asst. Dist. Atty., Mercer, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

[494 Pa. 443] OPINION OF THE COURT

O'BRIEN, Chief Justice.

This is an appeal from a denial of relief and dismissal of appellant's petition which was filed pursuant to the Post Conviction Hearing Act. ¹

On or about October 13, 1973, Mark Chancellor was shot through the heart and buried in a shallow grave in Mercer County, Pennsylvania. The victim had been seeking admission to the Breed Motorcycle Club, and arrived at a farm in Mercer County for an initiation. Apparently, an altercation developed between the victim and various members of the motorcycle gang and ended in Chancellor's death.

Appellant, Gary Roman, was charged in connection with the homicide, and was brought to trial on October 22, 1974, in Mercer County. A jury found him guilty of second degree murder. Following the denial of post-trial motions, the trial judge imposed a sentence of ten-to-twenty years.

Appellant's direct appeal resulted in a reversal of his judgment of sentence and remand for a new trial because of the admission at his first trial of prejudicial evidence. See Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976). On retrial, appellant was convicted of second degree murder and was again sentenced to a term of imprisonment of ten-to-twenty years. Appellant perfected a direct appeal of that judgment of sentence to this Court where we dismissed all issues except one as being devoid of merit. We considered the remaining issue to be waived and affirmed the judgment of sentence. See Commonwealth v. Roman, 478 Pa. 619, 387 A.2d 661 (1978).

Thereupon, appellant filed a PCHA petition, which was later amended by court-appointed counsel. In his amended petition, appellant raised numerous issues, including four counts of ineffective assistance of counsel. Appellant limited testimony at an evidentiary hearing on October 25, 1979, to the ineffective assistance of counsel issues, thereby abandoning all other grounds for post-conviction relief. After [494 Pa. 444] the submission of briefs, the hearing judge dismissed appellant's petition and denied relief. It is from that Order of July 28, 1980, that this appeal ensues.

Initially, appellant contends that trial counsel was ineffective for failing to file a petition to dismiss for a violation of Pa.R.Crim.P. 1100. This Rule, as we have reviewed innumerable times, mandates:

"(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.

"(a)(2) 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."

Pa.R.Crim.P. 1100(a)(1) & (a)(2). If a case is not called to trial within the designated time period, and if the Commonwealth does not petition for an extension of time, a defendant may apply for an order dismissing the charges with prejudice. Pa.R.Crim.P. 1100(f). However, Rule 1100 provides for the extension of the time period in two ways. According to Pa.R.Crim.P. 1100(c):

"(c) 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,

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if any, and the defendant shall also 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...