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decided: July 12, 1978.


No. 1592 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, at No. 808 January Term, 1976, Montgomery County.


George B. Ditter, 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. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, Judge, dissenting. Van der Voort, J., joins the dissent by Price, J.

Author: Hoffman

[ 256 Pa. Super. Page 251]

Appellant contends that the lower court erred in denying his Rule 1100(f) application, Pa.R.Crim.P.; 19 P.S. Appendix.*fn1 In the alternative, appellant argues that his trial

[ 256 Pa. Super. Page 252]

    counsel was ineffective in failing to file a timely Rule 1100(f) application. We agree with the latter contention and, for the reasons which follow, order appellant discharged.*fn2

On February 11, 1976, Philadelphia police arrested appellant and his brother*fn3 for various violations of the Vehicle Code.*fn4 As a result of an investigation by the police departments of Philadelphia and Lower Merion Township, Montgomery County, a complaint against appellant was filed on February 11, 1976, in Montgomery County. The complaint charged appellant with burglary,*fn5 theft,*fn6 receiving stolen property,*fn7 and conspiracy.*fn8

On August 9, 1976, the 180th day following the filing of the complaint, the Commonwealth filed an application to extend the time for the commencement of trial pursuant to Rule 1100(c).*fn9 Following a hearing on August 19, 1976, the

[ 256 Pa. Super. Page 253]

    lower court granted an extension until October 15, 1976.*fn10 On November 29, 1976, the parties and the court agreed to proceed the next morning with pre-trial motions and trial. On November 30, 1976, the lower court conducted a suppression hearing. Following the court's denial of the suppression motion, appellant's trial counsel made an oral motion pursuant to Rule 1100(f) to dismiss the charges against appellant. The lower court denied the motion and then proceeded to conduct a jury trial waiver colloquy. Trial commenced after the court accepted the waiver.

On December 1, 1976, the court found appellant guilty of burglary, theft, and conspiracy. On December 6, 1976, the court sentenced appellant to concurrent terms of imprisonment for not less than six nor more than 23 months. This appeal followed.

Appellant contends that the lower court erroneously denied his application to dismiss the charges against him pursuant to Rule 1100(f). The Commonwealth responds that by failing to file the application to dismiss prior to the commencement of trial, appellant forfeited his right to a speedy trial under Rule 1100. The first question we must confront, therefore, is the timeliness of appellant's assertion

[ 256 Pa. Super. Page 254]

    of his Rule 1100 rights. Rule 1100(f) limits the time within which a defendant may apply for an order dismissing the charges against him to "any time before trial." The appellate courts of Pennsylvania have often referred to the explanatory comments to Rule 1100(f) to aid in the interpretation of that portion of the Rule. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977) (Concurring Opinion by EAGEN, C. J.); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977); Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977). The Comment provides:

"It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial." (Emphasis added).

In the instant case, the motion court ordered the rule to show cause pursuant to appellant's motion to suppress returnable at the time of trial before the trial judge. According to Rule 1100, this order effectively reserved consideration of the motion for time of trial. Further, actual trial commenced within minutes of the suppression hearing. Therefore, for purposes of Rule 1100(f), we conclude that trial commenced at the outset of the suppression hearing on November 30, 1976. But see Commonwealth v. Byrd, supra (Concurring Opinion by HOFFMAN, J.). Because appellant's trial counsel did not interpose his Rule 1100(f) claim until the close of the suppression hearing, we conclude that appellant waived his Rule 1100 claim by failing to raise it in a timely fashion.

In anticipation of our conclusion as to the foregoing issue, appellant alternatively contends that if trial counsel failed to preserve appellant's Rule 1100 right, then appellant's

[ 256 Pa. Super. Page 255]

    right to effective assistance of counsel was violated.*fn11 In evaluating a claim of ineffective assistance of counsel, we must be guided by the standard articulated by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352 (1967): "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

[ 256 Pa. Super. Page 256]

    as it is determined that trial counsel's decisions had any reasonable basis." (emphasis in original). In Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977), the Supreme Court, in delineating the process by which we assess an ineffectiveness claim stated, "It is only when the claim which was foregone was of arguable merit that we must make an inquiry into [whether there was a reasonable] basis for . . . counsel's decision not to pursue the matter. . . . [O]nce we conclude that the omitted contention is of arguable merit, our inquiry into the substance of the claim ceases and shifts to an analysis of . . . counsel's basis for decision." See also, Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978) (Concurring Opinion by POMEROY, J.). In Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976), the Supreme Court addressed the scope of the inquiry into the basis for counsel's decision: "Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken." (footnotes omitted).

[ 256 Pa. Super. Page 257]

We must now determine whether, according to the procedure outlined in Hubbard, appellant's Rule 1100 claim was arguable meritorious. As previously noted, the criminal complaint against appellant was filed on February 11, 1976. Thus, the Commonwealth had 180 days or until August 9, 1976, to bring appellant to trial. Trial did not commence, however, until November 30, 1976, 111 days beyond the expiration of the 180 day period. In Commonwealth v. Page 257} Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976), the Supreme Court reiterated: "[A]ll of the delay beyond the . . . mandatory period '. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)]*fn12 or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail." In Commonwealth v. O'Shea, 465 Pa. 491, 498, 350 A.2d 872, 875 (1976), the Supreme Court held that "the period or date specified in the order [granting the Commonwealth's Rule 1100(c) application to extend the time for the commencement of trial] becomes the time limitation within which trial must commence. Any further extension necessary must be sought pursuant to Section (c) prior to the expiration of the period for commencement of trial, that is, prior to the expiration of the period provided for in the extension, or excluded from the computation of elapsed time pursuant to Section (d)." See also Commonwealth v. Shelton, supra; Commonwealth v. Woods, 461 Pa. 225, 336 A.2d 273 (1975).

In the instant case, the record shows that on August 19, 1976, the lower court granted the Commonwealth's Rule 1100(c) petition and extended the time for trial until October 15, 1976. The Commonwealth neither sought any further extensions nor argued below or to our Court that certain periods of time should be excluded from the computation of the mandatory period pursuant to Rule 1100(d).*fn13 Consequently,

[ 256 Pa. Super. Page 258]

    because trial commenced on November 30, 1976, 45 days beyond the expiration of the period provided for in the extension, we conclude that appellant's claim that his Rule 1100 rights were violated is meritorious.

At this juncture, were it unclear from the record whether counsel's inaction had a rational basis, we would remand for an evidentiary hearing to determine "whether counsel's decision had some reasonable basis designed to effectuate his client's interests." Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975), quoting Commonwealth ex rel. Washington v. Maroney, supra at 604, 235 A.2d at 352. In the instant case, however, it is manifestly clear that there could be no reasonable basis for trial counsel's inaction. Therefore, a remand would serve no purpose. Commonwealth v. Turner, supra, 469 Pa. at 319, 365 A.2d at 847; Commonwealth v. Fallings, 251 Pa. Super. 365, 380 A.2d 822 (1977). In a virtually identical context, our Court, in Commonwealth v. Byrd, supra at 256, 378 A.2d at 924 stated: "We can perceive no reasonable legal basis for an attorney to fail to object to a violation of his client's right to speedy trial under Pa.R.Crim.P. 1100. See Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976) (dissenting opinion by Roberts, J.). If appellant's trial counsel has filed a timely petition to dismiss, the appellant would have been entitled to discharge." Consequently, our Court vacated the judgment of sentence and ordered appellant discharged. Likewise, in the instant case, we conclude, without the need for an evidentiary remand, that trial counsel was ineffective in not acting in a timely fashion to vindicate appellant's Rule 1100 rights. Accordingly, we vacate the judgment of sentence and order appellant discharged.

[ 256 Pa. Super. Page 259]

Judgment of sentence vacated and appellant ordered discharged.

PRICE, Judge, dissenting:

In his opinion, it is not so apparent from the record before us that trial counsel was ineffective. In this regard, he relies upon the opinion of the court below. He would, therefore, remand for an evidentiary hearing to determine the effective assistance of counsel in regard to the Pa.R.Crim.P. 1100 issue.

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