No. 244 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Nos. 312-14, June Term, 1976.
Henry I. Jacobson, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ. Hester, J., files a dissenting statement.
[ 269 Pa. Super. Page 126]
Following a jury trial commenced on October 5, 1976, appellant was convicted of simple assault*fn1 and possessing an instrument of crime.*fn2 Post-trial motions were denied, and appellant was sentenced to terms of imprisonment of from one to two years on the simple assault charge and from two and one-half to five years on the charge of possessing an instrument of crime. The two sentences were to run consecutively.
On appeal, appellant contends that his right to a speedy trial under Pa.R.Crim.P. 1100*fn3 was violated and that he was denied effective assistance of counsel with respect to his petition to dismiss filed pursuant to Rule 1100. We find that appellant was denied effective assistance of counsel with respect to his meritorious Rule 1100 claim, and therefore vacate the judgment of sentence and order appellant discharged.
The facts pertinent to our consideration of the instant case are as follows. A criminal complaint was filed against appellant on May 19, 1975. At that time, appellant was on
[ 269 Pa. Super. Page 127]
parole from imprisonment on prior offenses. Local authorities were unable to locate appellant, and the investigating detective on the case, Paul Smith, entered appellant's name in the national computer system. Appellant was arrested in Connecticut on January 12, 1976, for offenses committed there, and Connecticut officials subsequently discovered the Pennsylvania entry of appellant's name in the computer system. Appellant was returned to Pennsylvania officials on January 19, 1976, and incarcerated in Graterford State Prison. Detective Smith did not discover the circumstances of appellant's arrest in Connecticut and his return to Pennsylvania until May 11, 1976. Appellant was formally arrested by local officials on May 20, 1976. On July 6, 1976, appellant filed a pro se motion to dismiss the charges, pursuant to Rule 1100(f).*fn4 A hearing was held, and the lower court denied the petition. In its opinion in support of that ruling, the court concluded that the Commonwealth exercised due diligence in seeking appellant's return, and that the appellant was "unavailable" from May 19, 1975 to May 11, 1976, a period of 358 days. Accordingly, the court of common pleas calculated that the run date for Rule 1100 purposes was November 7, 1976.*fn5 Trial commenced on October 5, 1976.
Initially, we note that appellant's petition to dismiss was prematurely filed and therefore invalid. The petition was filed on July 6, 1976. Appellant concedes that he was unavailable until his initial return to Pennsylvania in January
[ 269 Pa. Super. Page 128]
of 1976.*fn6 (Appellant's brief at 5). Thus, the petition to dismiss was filed on the 169th day after appellant's return to Pennsylvania. We have stated in the past that "[t]he validity of a defendant's petition to dismiss the charges against him pursuant to section (f) of Rule 1100 depends upon a showing that the prescribed period was violated at the time of the filing of the petition to dismiss." Commonwealth v. Richbourgh, 246 Pa. Super. 300, 304 n. 8, 369 A.2d 1331, 1334 n. 8 (1977). Since the petition was filed prior to the 180th ...