No. 1273 October Term, 1976, Appeal from the Judgment of Sentence of Cirillo, J., dated March 12, 1976, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division at Number 1996 April Term, 1975, C.A. Number 1996.1 of 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring opinion. Jacobs and Hoffman, JJ., dissent and would grant a new trial.
[ 251 Pa. Super. Page 55]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, Criminal Division, by the defendant-appellant, Nathaniel Tuggle, after conviction in a jury trial of theft of a movable object (purse snatching).
The defendant seeks dismissal of the charges against him under Pennsylvania Rules of Criminal Procedure, Rule 1100. The Commonwealth filed a petition for extension on the 179th day, October 21, 1975, stating that the case could not be reached because of the unavailability of a trial judge. The court granted the extension to October 24, 1975, when
[ 251 Pa. Super. Page 56]
the trial began. This complied with Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
A more serious issue is raised by this appeal. It is the failure of the court below to quash the indictments because the appellant was not represented by counsel at either the preliminary hearing at which the appellant testified or the arraignment.
The record indicates that no waiver was signed at the District Justice's office nor that the appellant acquiesced in proceeding without counsel. The record discloses confusion on everyone's part as to appellant's wishes regarding the question of representation or continuance to secure counsel as there was more than one preliminary hearing with the same defendant on different days. No attempt was apparently made to secure a waiver or have the same recorded so as to protect the record.
The preliminary hearing is a critical stage of the proceedings and, under the circumstances of this case, the appellant was effectively denied the benefit of counsel, therefore his constitutional rights were violated. Coleman v. ...