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.
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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
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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
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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 ...