Commonwealth v. WarehamCommonwealth v. Wareham
- Reporters:
- , ,
- Before:
- Cercone
This is an appeal from a judgment of sentence of the Court of Commоn Pleas of Montgomery County, Criminal Division. A jury found appellant guilty of robbery, theft, rape, involuntary deviate sexual intercourse, simple assault, criminal attempt, possession of instruments of crime, felonious restraint, recklessly endangering another person, terroristic threats, and criminаl conspiracy. Post-trial motions were timely filed and denied and the court sentenced appellant to a term of ten to twenty years’ imprisonment.
Appellant contends that an in-court identification should have been suppressed as the result of an unnecessarily suggestivе pretrial photographic display. In Commonwealth v. Holz, 245 Pa.Super. 376, 369 A.2d 452 (1976), where the facts of the instant case are recited in detail, we affirmed the conviction of appellant’s co-defendant and rejected a parаllel claim, holding that the in-court identification of Holz had the indepеndent basis required by United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). As the circumstances bearing on the “independent bаsis” issue here are substantially identical to those in Holz, we reach the same conclusion: the identification of appellant was not the result of suggestive pretrial procedures and was properly allowed.
*133 Appellant has one other complaint, that his counsel below was ineffective in failing to raise a Rule 1100 issue on post-trial mоtions.
Rule 1100(a)(2), Pa.R.Crim.P., 19 P.S. Appendix, requires that trial in a case where the сomplaint is filed after July 1, 1974, commence within 180 days from the date the complaint is filed. The complaint in the instant case was filed July 26, 1974. On January 20, 1975, the 178th dаy, the Commonwealth filed a petition for extension under
We are unable to determine from the record whether counsel’s deсision not to raise a Rule 1100 issue in post-trial motions was based on a bеlief that such action would be futile, had some other reasonable basis, or was the result of carelessness. The record leaves us in thе dark as to the reason for the extension. The petition was a pro forma petition of the sort that we disapproved in Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976). Any сonclusion we might reach as to the merits of the issue, the likelihood thаt it could have been successfully raised on post-trial motions, and the legitimacy of counsel’s reasons for not doing so would be speсulative.
Accordingly, we vacate the judgment of sentence and remand for an evidentiary hearing to determine whether appellant was deprived of the right to the effective assistance of counsel on the post-trial motions. * If the court determines counsel acted competently, the judgment of sen *134 tence must be reinstated. If his failurе to raise the Rule 1100 issue is deemed to constitute ineffectiveness, аppellant shall be allowed to file post-trial motions nunc prо tunc to raise the issue. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Judgment of sentence reversed and case remanded for further proceedings consistent with this opinion.
WATKINS, President Judge, and VAN der VOORT, J., dissent. HOFFMAN, J., concurs in the result.
Notes
As сounsel’s effectiveness at trial and before is not questioned, his prеtrial actions may be considered only to the extent that they help explain his post-trial decisions.