Thomas R. Wilson, West Chester, for appellant.
Alan J. Jarvis, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Jacobs, President Judge, and Hoffman and Spaeth, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 103]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Chester County, Criminal Division, by the defendant-appellant, Clayton A. Shultz, after conviction by a jury of bills of indictment charging forgery and related offenses; and from the denial of post-trial motions.
[ 255 Pa. Super. Page 104]
The issues raised on appeal are: 1) that the court erred in denying motions to dismiss for violations of Rule 1100 of the Pa. Rules of Crim. Pro., one filed September 24, 1974 and the second filed on October 22, 1974; and 2) ineffective assistance of counsel.
A written complaint was filed on November 15, 1973. The defendant was arrested on the same day. On November 20, 1973, a preliminary hearing was held. And although some argument was made of an alleged agreement concerning a waiver of arraignment, the court held that he was not arraigned until September 24, 1974.
The 270-day period would have run on August 12, 1974, unless there was excludable time. The case was first listed for trial on April 17, 1974. By letter dated March 21, 1974, Attorney Kean, private counsel for the defendant at the preliminary hearing informed the Commonwealth that he was no longer representing the defendant. By letter dated April 9, 1974, the Public Defender's office notified the Court Administrator that an Attorney Kalmbach was assigned to represent the defendant. The defendant during the period in question, was being held in the Chester County Farm Prison and readily available to the Commonwealth.
When the case was called for trial, Mr. Kean was present and stated that he no longer represented the defendant. Mr. Kean's appearance and statement was due to the fact that despite his letter and the letter from the Public Defender's office, Mr. Kean was listed as counsel for the defendant and no appearance had been entered by the Public Defender's office. The court below found as a fact, after hearing the petition to dismiss filed September 24, 1974, that at the call of the list, Attorney Michael Baranco of the Public Defender's office stated to the court that the Public Defender's office did not represent the appellant and also found as a fact that at that time the Public Defender's office did represent the defendant, despite the statement of Mr. Baranco, which was incorrect. The court below then concluded as a matter of law that the attorney made himself unavailable and held that the period of delay running from August 5 to September 24 was chargeable to the defendant.
[ 255 Pa. Super. Page 105]
"The Commonwealth must be able to point to actual frustration of litigation before we can conclude that unavailability of counsel or a defendant caused the delay." Commonwealth v. Mancuso, 247 Pa. Super. 245, 372 A.2d 444 (1977), Footnote 4. The instant case is a classic example of "actual frustration of litigation".
The second petition to dismiss filed October 22, 1974 poses an even more difficult problem. The court by its order in the first petition extended the time to September 24, 1974. The court below found the defendant unavailable for the period from September 24 to the date of trial October 28, 1974. He based his reasoning on a conversation between the defendant's attorney and a clerk in the District Attorney's office concerning a waiver of arraignment which resulted in the ...