No. 473 January Term, 1976, Appeal from Judgment of Sentence in the Court of Common Pleas of Montgomery County, No. 1065 October Term, 1973 and Affirmance by the Su erior Court, No. 1046 October Term, 1975.
George C. Brady, III, Conshohocken, for appellant.
John J. Burfete, Jr., John T. Salvucci, Ronald T. Williamson, Asst. Dist. Attys., Norristown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., did not participate in this Order. Roberts, J., files a statement in opposition to the per curiam order. Manderino, J., notes a dissent to the per curiam order. Nix, Justice, filed an opinion in support of remand. Eagen, C. J., and O'Brien, J., join in this opinion. Larsen, Justice, dissenting.
Mr. Justice Nix, joined by Mr. Chief Justice Eagen and Mr. Justice O'Brien, filed an Opinion in Support of Remand and would remand the case for an evidentiary hearing to ascertain whether the Commonwealth had met the due diligence requirement of Criminal Procedure Rule 1100(c).
Mr. Justice Roberts, joined by Mr. Justice Manderino, filed an Opinion in Support of Discharge and would discharge the appellant, being satisfied that a Rule 1100 violation has been established on the record presently before the Court.
Mr. Justice Larsen filed a dissent wherein he would affirm the judgment of sentence.
Five of the six members of the Court hearing the matter are in agreement that the appellant is entitled to some type of relief. Since remand is a lesser remedy than is discharge, and the mandate of remand received the support of a plurality of the members of the Court, the case is remanded for an evidentiary hearing to determine whether the Commonwealth had met the due diligence requirement of Rule 1100(c). See, Aiken Industries, Inc. v. Wilson, 482 Pa. 626, 394 A.2d 497 (1978).
OPINION IN SUPPORT OF REMAND
Appellant, who was convicted of two counts of violating the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 et seq. (1977), sought allocatur from this Court after the Superior Court affirmed his conviction per curiam. On April 22, 1976, we granted allocatur. In an appeal to this Court, appellant was represented by the same counsel who had represented him in the Superior Court, and counsel was also a member of the same defender's office which had represented appellant at trial. Because appellant raised issues of trial and appellate counsel's effectiveness, the grant of the petition for review was limited to the question whether a public defender may challenge the effectiveness of a colleague from the same office. We answered in the negative, Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978), and remanded for appointment of new counsel. The trial court complied with that mandate, and new counsel represents appellant in the instant appeal.
Appellant's basic contention is that trial and former appellate counsel were ineffective for failing, respectively, to preserve properly and to raise certain claims that appellant was entitled to a discharge under Pennsylvania Rule of Criminal Procedure 1100. The trial court held that the claim was waived for failure to present it in writing pre-trial, relying upon rules 304, 305 (now 306) and 1100(f). Due to the date of the criminal episode, the two hundred and
seventy (270) day limit applies to this appeal. Pa.R.Crim.P. 1100(a)(1). The relevant ...