Commonwealth v. Guldin

NIX, Justice,

concurring.

The facts of this case clearly demonstrate the error of the order of discharge entered by Judge Lord and affirmed by a panel of the Superior Court. From this record it is apparent that the Commonwealth was ready and willing to try this case prior to the original run date of March 11, 1977. During the February 10, 1977 status listing conference the only impediment to a trial listing before March 11,1977 was the fact that appellee had voluntarily entered Eagleville Hospital and would be receiving treatment for the ensuing *72 two months. 1 The fact that the conference judge may have attempted to justify the delayed listing on the grounds of a recalculation of the period because of judicial delay is immaterial. 2 Clearly the delay between March 11th and April 14th was directly attributable to the unavailability of the appellee and thus automatically excludable under section (d) of Rule 1100. 3 See, Com. v. Cohen, 481 Pa. 349 , 392 A.2d 1327 (1978); Com. v. Williams, 299 Pa.Super. 226 , 445 A.2d 537 (1982); Com. v. Rodriquez, 291 Pa.Super. 239 , 435 A.2d 888 (1981).

Moreover, to justify an order of discharge on a finding of original trial counsel’s ineffective representation based upon his failure to object to the April 14th listing defies reason. As we have repeatedly stated, the hallmark of ineffective representation is that the challenged action cannot be found to have been designed to serve the client’s best interests. Com. v. Davenport, 494 Pa. 532 , 431 A.2d 982 (1981); Com. v. Musi, 486 Pa. 102 , 404 A.2d 378 (1979); Com v. Hosack, 485 Pa. 128 , 401 A.2d 327 (1979); Com. v. Weathers El, 485 Pa. 28 , 400 A.2d 1295 (1979); Com. v. Treftz, 485 Pa. 297 , 401 A.2d 1325 (1979) Com. v. Williams, 485 Pa. 137 , 401 A.2d 331 (1979); Com. v. Chumley, 482 Pa. 626 , 394 A.2d 497 (1978); Com. v. Coleman, 482 Pa. 581 , 394 A.2d 474 (1978); Com. v. Sisco, 482 Pa. 459 , 393 A.2d 1197 (1978); Com. ex rel. *73 Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967). Additionally, we have made it clear that hindsight judgment must not be used in making that assessment. Com. v. Davenport, supra. Com. v. Musi, supra. Com. v. Hosack, supra. Com. v. Weathers El, supra. Com. v. Treftz, supra. Com. v. Williams, supra. Com. v. Chumley, supra. Com. v. Coleman, supra. Com. v. Sisco, supra. Com. ex rel. Washington v. Maroney, supra.

Whether or not counsel had the authority to waive appellee’s rights under the factual setting here involved is not germaine to the question presented. It was at the behest of the defense that the trial was extended and as the majority properly notes it was reasonably designed to effectuate appellee’s best interests. It is specious to now argue that because original trial counsel acted without authority and was successful in seeking a delay which was designed to serve the client’s best interest, the fact that the action was without authority constitutes ineffectiveness. Such reasoning is tantamount to concluding that trial counsel was ineffective for creating a situation which requires the discharge of his client.

For the stated reasons, I concur in the mandate of the Court.

. During the February 10th conference Mr. Henry, the Assistant District Attorney, made it clear that the delay was not for the benefit of the Commonwealth.

“I would state, we were ready to go to trial, we always have been ready to go to trial on this case.”

. The fact that a court may have assigned an improper reason for its ruling does not prevent a reviewing court from upholding that ruling where there is a proper basis for it. See, E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610 n. 4 , 381 A.2d 441 n. 4 (1977); Wilkinsburg v. Sanitation Dept. of Wilkinsburg, 463 Pa. 521 n. 2 , 345 A.2d 641 n. 2 (1975); Mazer v. Williams Brothers Company, 461 Pa. 587 n. 6 , 337 A.2d 559 n. 6 , (1975).

. After appellee’s release from the hospital, he personally waived operation of the rule on April 14 and July 29, 1977. There is, therefore, no basis for an argument that the period between March 11th and April 14th was more than necessary to accommodate appellee’s absence.