COMMONWEALTH of Pennsylvania, Appellant, v. Richard K. WELLS, Appellee.
Supreme Court of Pennsylvania.
Decided March 10, 1987.
521 A.2d 1388
Submitted Sept. 15, 1986.
Richard A. Lewis, Dist. Atty., Yvonne A. Okonieski, Deputy Dist. Atty., Harrisburg, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
ORDER
PER CURIAM.
Appeal dismissed as having been improvidently granted.
Charles J. Duke (Court-appointed), Bradford, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA, and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.*
This is the appeal of the Commonwealth of Pennsylvania (Appellant) from the Per Curiam Order of Superior Court affirming an Order of the Court of Common Pleas of McKean County granting relief to Richard K. Wells (Appellee) under the Post Conviction Hearing Act (PCHA).1
* Reassigned to this writer on November 25, 1986.
Pursuant to Superior Court‘s direction, hearings were conducted before President Judge Fink, the trial judge, on January 31, 1984, and February 24, 1984, following which an Opinion and Order were filed again granting Appellee‘s Petition and ordering Appellee‘s discharge. The Opinion and Order were filed on March 8, 1984, and made effective on March 15, 1984.
Appellant filed its appeal with Superior Court which stayed Appellee‘s release pending its disposition of the appeal. That Court, by its Per Curiam Order of March 29, 1985, affirmed the trial court‘s order, without publishing an opinion. Commonwealth v. Wells, 345 Pa.Superior Ct. 623, 496 A.2d 855 (1985).
Appellant thereupon filed a Petition for Allowance of Appeal arguing that neither the PCHA court nor the reviewing court applied the correct standards in analyzing Appellee‘s ineffectiveness claims. Our preliminary review of the record indicated to us that the lower courts did, in fact, grant Appellee‘s Petition without first applying the standard required in such cases by Commonwealth ex rel.
Before beginning our analysis, it is important to recount the factual setting which forms the basis of Appellee‘s PCHA Petition.
Appellee was arrested on July 28, 1975, for the robbery and murder of an elderly female resident of a hotel which Appellee was visiting. Within two weeks of the arrest (August 8, 1975), trial counsel moved for a change of venue on the grounds of prejudicial pre-trial publicity. A hearing was held on the motion on September 8, 1975, after which the motion was denied. On September 12, 1985, however, the trial court issued its own order continuing the case until the February, 1976, term of court, beyond the time permitted for the start of trial pursuant to
Sometime in November, 1975, the District Attorney filed its own petition with the trial court seeking to confirm the continuance based on the anticipated need to summon a large panel of veniremen from which a jury could be selected to try Appellee. Trial counsel, at an on the record hearing, agreed to the continuance. The trial was thereafter called for March 1, 1976, 217 days after Appellee‘s arrest.
Appellee points to this factual scenario and argues that his trial counsel‘s actions in agreeing to a continuance represented ineffective assistance of counsel because counsel‘s actions implicated his constitutional right to a speedy trial guaranteed by the
In considering Appellee‘s claim, the PCHA court determined that Appellee, who was not present at the hearing continuing his case, and who was not informed of the continuance or permitted to participate in the decision to agree to a continuance, was, in fact, denied the constitutional right to a speedy trial. It appears to us, however, that in reaching Appellee‘s constitutional claim, no consideration
A proper resolution of Appellee‘s constitutional claim necessarily involves reference to trial counsel‘s actions, because if counsel‘s decision to agree to the continuance constituted effective representation, then Appellee‘s constitutional argument fails. To this extent, the question of counsel‘s representation is inextricably fused with Appellee‘s constitutional claim which can only be reached if trial counsel is found to be ineffective.
Because the PCHA court reached Appellee‘s constitutional claim without referring to counsel‘s effectiveness, we conclude that its granting of relief was error.
As discussed in many of our cases, before a claim of ineffectiveness can be sustained, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must then determine whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Here, Appellee‘s underlying argument is that his trial counsel was ineffective in agreeing to a continuance of his trial beyond the 180 days permitted in bringing a defendant to trial. Such an issue, in the abstract, may be of arguable merit and necessarily raises the related question of whether an attorney has the authority to agree to a continuance without his client‘s knowledge and consent. A majority of this Court has never held that only a defendant can agree to a continuance beyond the 180 day requirement, although a few plurality decisions of the Court hint at such a requirement. See, Commonwealth v. Waldman, 484 Pa. 217, 398
In our earlier case, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976), we made clear that
In applying Myrick and
We think these cases were correctly decided and are grounded on the premise that trial counsel may, at times, be in a position to make strategic or tactical decisions for his client concerning the start of trial. While such decisions may implicate the requirements of
The actions of counsel in this regard are imputed to the defendant who is bound thereby. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), see also dissenting opinion of Mr. Justice, now Chief Justice Nix, in Commonwealth v. Waldman, 484 Pa. 217, at 237, 398 A.2d 1022, at 1032 (1979). Since we find that counsel is vested with authority to agree to continuances for his client, the exercise of such a choice cannot be ineffectiveness per se, nor can it be prejudicial in itself. As we indicated in Crowley, a defense counsel‘s failure to object to an exten-
Since we have already indicated that Appellant‘s argument (i.e., that trial counsel improperly consented to a continuance) may have some arguable merit under Maroney, the focus of the inquiry shifts to whether trial counsel‘s action had some reasonable basis designed to effectuate his client‘s interests.
Our inquiry ceases and counsel‘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 test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel‘s decision had any reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Applying the Maroney standard to trial counsel‘s actions, we are satisfied that trial counsel‘s decision to
It is also of no moment that counsel‘s decision was made without Appellee‘s on the record consent. Continuances are a matter of sound trial strategy within the reasonable purview of counsel. See, Chancey v. Commonwealth, Pennsylvania Board of Probation and Parole, 83 Pa.Commonwealth Ct. 42, 477 A.2d 22 (1984); Commonwealth v. Daniels, 288 Pa.Superior Ct. 69, 431 A.2d 291 (1981); Commonwealth v. Walley, 262 Pa.Superior Ct. 496, 396 A.2d 1280 (1978).
The consent to a continuance here was grounded in an attempt to avoid a tainted jury. Trial counsel‘s strategy then was one intended to effectuate his client‘s best interests, and we find no ineffectiveness in his chosen course of conduct.
Since trial counsel‘s representation had some reasonable basis designed to effectuate his client‘s interests, our inquiry ceases under the Maroney standard. Accordingly, Appellee‘s attempt to overturn the judgment of sentence entered against him in this PCHA Petition must fail.
ZAPPALA, J., files a dissenting opinion.
ZAPPALA, Justice, dissenting.
Because the Appellee did not knowingly and voluntarily waive his right to a speedy trial, as specifically determined by the post-conviction hearing court, I dissent. See, Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983) (Zappala, J., dissenting) and Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) (Zappala, J., dissenting).