Commonwealth v. Tome

• Decision Date: 16 March 1979
• Citation: Commonwealth v. Tome, 398 A.2d 1369, 484 Pa. 261 (Pa. 1979)
• Parties: COMMONWEALTH of Pennsylvania v. Roberto I. TOME, Appellant.
• Court: Pennsylvania Supreme Court

398 A.2d 1369

484 Pa. 261

COMMONWEALTH of Pennsylvania v. Roberto I. TOME, Appellant.

Supreme Court of Pennsylvania.

March 16, 1979

Submitted Jan. 18, 1979. [Copyrighted Material Omitted]

George B. Ditter, Chief, Appeals Div., Norristown for appellant.

Eric J. Cox, Asst. Dist. Atty., Norristown, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

Appellant, Roberto I. Tome, was convicted by a jury of two counts of murder of the second degree, burglary, criminal attempt and violations of the Uniform Firearms Act for the September 28, 1974, shooting deaths of two sisters, Doris and Jean Maile, at their home and place of business known as the Villanova Nursery in Upper Merion Township, Pennsylvania. Postverdict motions were denied and appellant was sentenced to a single prison term of ten to twenty years for the two murder convictions, ^[1] with a consecutive ten-to-twenty-year prison term on the burglary conviction. Sentence was suspended on the remaining convictions. Approximately two weeks after the original pronouncements of sentence, however, appellant's sentence for the murder convictions was increased to a single term of life imprisonment. The remaining sentences were not altered. This direct appeal followed from the judgment of sentence on the murder convictions. A direct appeal from the judgment of sentence on the burglary conviction was taken to the Superior Court, which certified that appeal to this court for disposition. ^[2]

Appellant raises numerous allegations of error, many of which deal with the effectiveness of counsel at all stages of the instant proceedings. In Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we stated:

"In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

'(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had Some reasonable basis designed to effectuate his client's interests.'

"The initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis. In Maroney, 427 Pa. 599, 235 A.2d 349, we noted that 'a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.' Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. See, e. g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974); cf. Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for the post-trial counsel's decision not to pursue the matter." (Emphasis in original.)

Appellant first claims that trial counsel was ineffective for failing to file a motion to quash the indictments for burglary, criminal attempt and violations of the Uniform Firearms Act. The facts are as follows.

Appellant was arrested without a warrant on October 15, 1974, and was charged with murder and criminal conspiracy. A preliminary hearing on these charges was held on October 25, 1974. On March 19, 1975, appellant was charged additionally with burglary, criminal attempt and violations of the Uniform Firearms Act. On March 25, 1975, appellant signed a written waiver of a preliminary hearing on these charges. All charges were subsequently consolidated for trial.

Appellant first believes a motion to quash, if filed, would have been granted because of Pa.R.Crim.P. 131 and our decision in Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978). We disagree. Pa.R.Crim.P. 131(b) provides:

"When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case."

Appellant believes that since the charges of burglary, criminal attempt and violations of the Uniform Firearms Act were brought in a second subsequent complaint to the one charging murder and conspiracy, Rule 131(b) requires dismissal of the charges brought on the second complaint. Pa.R.Crim.P. 131(c) provides, however, that:

"Upon application by any interested person and proof that any provision of paragraphs (a) or (b) hereof was violated, a judge of the court may order the forfeiture of all additional costs of the issuing authority accrued by reason of such violation, and thereafter such costs shall not be taxed in the case."

A reading shows that Subsection (c) gives the remedy for a violation of Subsection (b), and the remedy is clearly Not dismissal of the charges brought on the second complaint, as suggested by appellant.

Further, Commonwealth v. Earp, supra, is inapposite. There, the defendant was charged with numerous offenses arising from the same episode, two of which were murder and conspiracy. At a preliminary hearing on those two charges, both were dismissed for want of evidence. The defendant, however, was continuously held on the remaining charges, was subsequently rearrested, and was charged again with murder and conspiracy. The defendant's trial commenced within 180 days of the rearrest date but more than 180 days from the original arrest date. The court held that under these facts, the defendant's trial was not commenced within the time period prescribed by Pa.R.Crim.P. 1100, and, therefore, the defendant was discharged. The reason we believe that Earp does not control is because while Rule 1100 calls for discharge upon violation of that rule, Rule 131 prescribes no such remedy. In the instant case, appellant could have avoided paying the costs involved on the second complaint. Dismissal of the charges, however, was not possible on the grounds urged by appellant and counsel was thus not ineffective for failing to file a motion to quash because of a violation of Rule 131(b).

Appellant next claims the charges filed on the second complaint should be dismissed because he was not represented by counsel at the preliminary hearing. As appellant signed a written waiver of the preliminary hearing, his contention is frivolous.

Appellant next claims that his trial counsel was ineffective for failing to file a motion to quash all indictments because the prosecution used falsified evidence. Appellant, however, makes no specific allegations of what falsified evidence was used. Since his contention is not supported by the record, it is meritless.

Appellant next alleges that trial counsel was ineffective because he allowed his co-counsel to materially alter various portions of the record, all of which changes were prejudicial to appellant. Specifically, appellant claims that all portions of the record dealing with the date of appellant's arrest were changed from October 14, 1974 (the date on which appellant claims he was arrested) to October 15, 1974. Appellant believes this to be significant because if, in fact, the arrest occurred on October 14, he was not afforded a preliminary hearing within ten days, as called for in Pa.R.Crim.P. 140(f)(1). All of the Commonwealth's witnesses who testified concerning appellant's arrest stated that the arrest occurred on October 15. Appellant's argument is thus without merit.

Appellant also argues that trial counsel was ineffective for failing to bring to the court's attention that a candidate for district attorney in Montgomery County was present with the grand jury, in violation of Pa.R.Crim.P. 209, when that body was deciding whether or not to indict appellant. Appellant's claim is devoid of any support in the record, his claim is thus without merit.

Appellant next claims that trial counsel was ineffective for failing to file a motion to quash the indictments for failure of the Commonwealth to comply with Pa.R.Crim.P. 1100. The facts are as follows. Appellant was arrested on October 15, 1974, with the 180-day time period expiring on April 13, 1975. On April 9, 1975, appellant moved for a continuance because his attorney was tied up with a two-week trial in Chicago. The court then explained to appellant that if the continuance was granted, he would not be tried within the time period called for by Rule 1100. Appellant told the court he understood and was willing to waive the right to be tried within 180 days. The court accepted appellant's waiver and set the trial date for May 27, 1975. Further, on April 10, the Commonwealth petitioned for an extension of time pursuant to Rule 1100(c), alleging that despite all due diligence on the part of the Commonwealth, trial could not commence on or prior to April 13, 1975. The court granted the Commonwealth's petition and extended time for trial until May 27, 1975. Under these facts, a motion to quash would have been fruitless and counsel was not ineffective for having failed to file the motion. See Commonwealth v. Coleman, 477 Pa. 400, 406-07, 383 A.2d 1268 (1978).

Appellant next argues that trial counsel was ineffective for failing to include in written post-verdict motions that the trial court had erred in refusing appellant's pretrial motion to suppress a silencer found in appellant's apartment. The facts are as follows. Following the homicides, police in...