No. 2201 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Northampton County, Criminal Division, at No. 315 October Term, 1974
Daniel E. Cohen, Easton, for appellant.
Robert A. Freedberg, Assistant District Attorney, Easton, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ. Hoffman, J., concurs in the result.
[ 275 Pa. Super. Page 40]
Appellant, Kent Irwin, was convicted of robbery and the unlawful possession of a firearm at a jury trial in Northampton County. Appellant was sentenced to serve from four to eight years imprisonment and appealed from his judgment of sentence. His contention on appeal is that his trial counsel was ineffective for failing to file a motion to dismiss pursuant to Pa.R.Crim.P. 1100(f).*fn1 We remanded the case for a hearing on the ineffectiveness issue. Commonwealth v. Irwin, 254 Pa. Super. 166, 385 A.2d 578 (1978). After the hearing, the trial court concluded that trial counsel's decision not to file a petition to dismiss had a reasonable basis designed to effectuate his client's interests. It is from that decision that appellant presently appeals to our court. We affirm the order of the lower court.
A criminal complaint was filed against appellant on November 23, 1974. According to Pa.R.Crim.P. 1100(a)(2),*fn2 trial was to commence within 180 days or by May 22, 1975. Appellant's trial took place on June 16, 1975, a period of 205 days after the complaint was filed. In order to compute the
[ 275 Pa. Super. Page 41]
period for commencement of trial, the rule further provides that excludable delays are those which resulted from
"(1) the unavailability of the defendant or his attorney; [or]
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." Rule 1100(d)(1) and (2).
Our review of the record shows that there was only one continuance requested and granted, and that was for a period of 28 days upon the request of the defendant.*fn3 Since the continuance was for a period less than 30 days, none of the days are chargeable to the defendant. Pa.R.Crim.P. 1100(d)(2). The Commonwealth, then, has the burden of proving that the 25 days that elapsed between the 180 day period and trial were excludable from the running of Rule 1100 because either the defendant or his counsel was unavailable, or because appellant had waived his Rule 1100 rights, or because the Commonwealth had been granted an extension of time in which to bring appellant to trial. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
Initially, we note that the Commonwealth did not file for an extension of time pursuant to Rule 1100(c).*fn4 However, if the Commonwealth can prove that the 25 days were automatically excludable under Rule 1100(d)(1), supra; Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d ...