Com. v. Smith

CourtSuperior Court of Pennsylvania
Writing for the CourtWICKERSHAM
Citation348 Pa.Super. 81,501 A.2d 656
PartiesCOMMONWEALTH of Pennsylvania v. Derrick SMITH, Appellant. 1339 Phila. 1984
Decision Date29 November 1985

Page 656

501 A.2d 656
348 Pa.Super. 81
COMMONWEALTH of Pennsylvania
Derrick SMITH, Appellant.
1339 Phila. 1984
Superior Court of Pennsylvania.
Submitted June 6, 1985.
Filed Nov. 29, 1985.

Page 658

[348 Pa.Super. 84] Joseph S. O'Keefe, Norristown, for appellant.

[348 Pa.Super. 85] Robert B. Lawler, Asst. Dist. Atty., Philadelphia, for Com., appellee.



Derrick Smith appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County.

On January 22, 1983, police were called to appellant Smith's residence, where they found Smith and the body of his common law wife, Vivian Pickens. Pickens had been strangled with an electric cord attached to a curling iron. Appellant told police "I killed my baby and she ain't here no more." N.T. 1/30/84, 19.

Appellant was arrested and taken to the police station where he made a formal statement admitting that he had strangled Pickens. Four hours later, he tried to take his own life by hanging himself in the interrogation room.

Appellant was then referred to the Hahnemann Mental Health Services Division as a psychiatric in-patient. The Rule 1100 run date in his case was initially set at July 21, 1983. On July 12, 1983, Smith waived his Rule 1100 rights until October 21, 1983. The Commonwealth concurrently filed a timely petition to extend until the same date. At a pre-trial hearing on July 21, 1983, Smith was found incompetent to stand trial and the Commonwealth amended its original petition to request extension until a date ninety days after he was declared competent. This extension was granted. Appellant was found competent to stand trial on September 20, 1983 and the 90-day extension period was fixed at December 19, 1983. This period was subsequently extended when appellant again waived the rule until February 1, 1984. Appellant was tried on January 30-31, 1984. He was convicted of first degree murder by the Honorable Juanita Kidd Stout. Post-trial motions were filed, argued and denied on April 12, 1984, at which time appellant was sentenced to life imprisonment.

[348 Pa.Super. 86] Smith, now represented by new counsel has filed this appeal raising five issues. 1

Page 659

The first issue that appellant presents is whether he was brought to trial within the time prescribed by Rule 1100. The remaining issues concern the effectiveness of trial counsel in various instances before, during, and after trial.

Rule 1100, as pertinent to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R.Crim.P. 1100(a)(2). 2 Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c), 3 or by an exclusion of time attributable [348 Pa.Super. 87] to defense delay under Rule 1100(d). 4 Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). After analyzing the procedural history of this case, we conclude that all periods of delay have been properly accounted for under the rule.

The running of the 180-day period was initially tolled by Smith's waiver of July 12, 1983 or in the alternative, by the Commonwealth's petition to extend. The running of the 180-day period was otherwise tolled during the same time by Smith's incompetency to stand trial. 5 The

Page 660

period excluded[348 Pa.Super. 88] from the rule by his incompetency included all time until September 20, 1983, when appellant was found competent. At that point, in accord with the Commonwealth's amended petition to extend, Rule 1100 was further tolled for 90 days. Finally, the rule was again tolled on October 16, 1983, when appellant waived the running of the rule until February 1 of the following year.

Regarding the October 16 waiver, appellant's right to speedy trial and the effect of that right were fully discussed in the colloquy and appellant's responses show his comprehension of the right. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Since the record indicates that appellant's waiver was his informed and voluntary decision, it will be accorded prima facie validity. See Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983); Commonwealth v. Carey, 313 Pa.Super. 20, 459 A.2d 389 (1983). The validity of this waiver is additionally supported by the fact that unlike the contested first waiver of July 12, 1983, the October 16 waiver was made after Smith was declared competent to stand trial. Thus, treating appellant's waiver as valid without evidence to the contrary, he was timely brought to trial two days before the expiration of that waiver.

In reaching our conclusion, we are guided by the dictates of our Supreme Court in Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981):

Rule 1100 'serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society,' Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to [348 Pa.Super. 89] deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n. 4, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

* * *

* * *

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

See Commonwealth v. Hollingsworth, --- Pa.Super. ---, 499 A.2d 381 (1985); Commonwealth v. Fisher, supra.

Here, it is obvious that the Commonwealth engaged in no misconduct which would thwart appellant's right to a speedy trial. The record shows quite the opposite; that the Commonwealth was ready to afford appellant his speedy trial right and was frustrated in its effort by the "unfortunate happenstance" of appellant's bouts with mental infirmity. See, Commonwealth v. Fisher, supra. It was because of appellant's mental condition that the Commonwealth made its request for an extension, because a psychiatric report found appellant incompetent to stand trial when he made his July 12 waiver. Similarly, only when notified at the July 21

Page 661

hearing that appellant remained incompetent to stand trial at that time did the Commonwealth request the amended extension date. Once appellant was finally found competent to stand trial, his own waiver further extended the running of the rule. Since the Commonwealth [348 Pa.Super. 90] cannot be blamed for failure to timely prosecute where any delay was occasioned by defendant's mental state or his own waiver, we cannot find Rule 1100 to have been violated in this case.

We turn next to appellant's allegations of counsel's ineffectiveness. As we observed in Commonwealth v. Hill, 340 Pa.Super. 155, 489 A.2d 889 (1985):

Our standard for review of ineffective assistance of counsel claims has changed recently; our prior practice had been to remand for a hearing on ineffectiveness whenever such a claim was made on appeal, if no hearing had been held by the trial court. The Supreme Court, however, condemned that practice in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), and set forth a new procedure; the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit. If they have no merit, no evidentiary hearing is necessary. Id., at 360, 479 A.2d at 957. Accordingly, we must decide whether appellant's claims have merit.

Id. at 160, 489 A.2d at 891. 6

Initially, we address appellant's claim that counsel was ineffective for failing to object to the Commonwealth's oral amendment to its petition for extension of time. Rule 1100(c) 7 permits the Commonwealth to apply to the trial court for an order extending the time for commencing trial [348 Pa.Super. 91] against a defendant. The Commonwealth timely filed a written petition in compliance with the requirements of the rule. On July 21, 1983, at a pretrial hearing at which appellant's counsel was present, the Commonwealth requested an amendment to this petition when evidence of appellant's incompetency necessitated a change in the date requested. This was not a new request but merely a reasonable amendment to the existing petition which previously established the Commonwealth's diligence and provided appellant with the requisite notice.

Appellant cites Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976) and other cases as support for the proposition that a petition for extension must be in writing and asserts that trial counsel was therefore ineffective for failing to object to the oral amendment. Appellant mistakenly treats the amendment as a separate entity from the original petition. Our own examination of the petition as amended leads us to conclude that it did not suffer the fatal defects of those petitions in the cases cited by appellant. In those cases, the prosecution filed mere form petitions making only the bare assertion that the...

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