Com. v. Wright

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before JACOBS; HESTER; HOFFMAN
• Citation: 260 Pa.Super. 341,394 A.2d 582
• Parties: COMMONWEALTH of Pennsylvania v. William WRIGHT, a/k/a Ralph Cannon, Appellant.
• Decision Date: 22 November 1978

Page 582

394 A.2d 582 260 Pa.Super. 341 COMMONWEALTH of Pennsylvania
v.
William WRIGHT, a/k/a Ralph Cannon, Appellant. Superior Court of Pennsylvania. Submitted June 12, 1978.
Decided Nov. 22, 1978.

Page 583

[260 Pa.Super. 343] Anthony G. Bateman, Philadelphia, for appellant.

[260 Pa.Super. 344] Eric B. Henson, Asst. Dist. Atty., and Edward G. Rendell, Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

HESTER, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, imposed on Indictment Nos. 369, 370 and 374, December Term, 1973. The procedural history and facts relevant to this appeal are as follows:

Appellant was arrested on November 11, 1973, for robbery but the complaint was filed on November 12, 1973. A preliminary

Page 584

hearing was held on November 21, 1973, at which time appellant was held for court, but was released on bail. On December 3, 1973, he was rearrested as a parole violator and was incarcerated from that date until August 16, 1974, the date of his trial. The case was initially listed for trial on December 17, 1973, at which time a bench warrant was issued because of appellant's failure to appear. Appellant was incarcerated, and the bench warrant was entirely inappropriate. On January 21, 1974, the case was again listed for trial; appellant was present but the case was relisted for March 12, 1974. At that time, a bench warrant was again issued for appellant who was in custody the entire time. The next listing was for March 25, 1974, at which time the bench warrant was withdrawn and the case continued to April 16, 1974, when it was again continued to May 3, 1974 in order that appellant could be tried with his codefendant. On May 3, 1974, a bench warrant was again issued, and subsequently withdrawn on May 10, 1974, when the case was relisted for June 5, 1974, with the public defender being appointed to represent appellant or private counsel, if engaged. On July 8, 1974, the case was continued at appellant's request until July 24, 1974. There is no reason [260 Pa.Super. 345] indicated on the docket for the further continuance until August 5, 1974, at which time Irvin Gross, Esquire, whom appellant indicated was his counsel, failed to appear. On August 6, 1974, Mr. Gross did appear and indicated that he did not represent the appellant. On August 8, 1974, pre-trial motions were heard by the court, having been reserved for hearing until just prior to trial. The case was continued until August 9, 1974, at which time the wrong defendant was brought to the courtroom, and the case was continued until Monday, August 12, 1974, when appellant filed a motion to dismiss pursuant to the 270-day rule which was denied late in the day. The Commonwealth was ready, willing and able to proceed to trial at that time. On August 13, 1974, after appellant requested that the Rule 1100 motion judge disqualify himself, he made an on-the-record waiver of his Rule 1100 rights until August 16, 1974, when the case was tried. Appellant was found guilty of three counts of robbery and his trial counsel made oral motions in arrest of judgment and for a new trial based upon insufficiency of the evidence, and the weight of the evidence. Appellant's counsel made no mention of the Rule 1100 claim which had been denied by the trial court. His counsel, after an appeal was filed to this court, filed an "Anders" brief claiming there were no meritorious issues on appeal. We entered a judgment of non-pros on the appeal. Appellant filed a Post Conviction Hearing Act petition alleging ineffective assistance of counsel in that any Rule 1100 claim was not properly preserved by his trial counsel for appellate review....