No. 544, 551 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, at No. 653-655, October Term, 1972
Vincent J. Fumo, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, James Jordan, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Eagen, C. J., and Nix, J., concurred in the result. Larsen, J., filed a concurring and dissenting opinion. Roberts, J., filed a dissenting opinion.
This is a direct appeal from judgment of sentence imposed by the Court of Common Pleas of Philadelphia County. Appellant was originally tried before a jury and convicted of murder, assault and battery and various weapons offenses in December, 1973. On appeal, we reversed and remanded for a new trial by Order of Court dated January 29, 1976. See, Commonwealth v. Swint, 465 Pa. 450, 350 A.2d 851 (1976). Appellant was subsequently retried and convicted by a jury of murder in the first degree of one victim and aggravated assault on another victim. Post verdict motions were denied and a sentence of life imprisonment was imposed upon the murder conviction, with a concurrent sentence of five to ten years imprisonment imposed upon the conviction for assault. This appeal followed.*fn1
Appellant contends that he was denied his Sixth Amendment right to effective assistance of counsel in that counsel failed to object to commencement of trial beyond the period prescribed by Pa.R.Crim.P. 1100(e). Secondly, appellant maintains that the trial court erred in admitting into evidence a prior consonant statement made by a prosecution witness. We find no merit to the latter and we are unable to adequately consider appellant's first argument without an additional finding of fact by the lower court. Accordingly, we remand.
Briefly, the facts constituting the offenses are these: At approximately three o'clock on the morning of August 13, 1972, appellant entered the Cobblers Club in Philadelphia. Appellant stood by the door with a gun in his hand and yelled, "Where's Boatwright?" At that point, Samuel Hill, one of the patrons in the Club, walked over to appellant to talk to him, whereupon appellant shot him in the back. Walter Boatwright then ran to the front of the bar. Appellant shot Boatwright in the head, then pulled the fallen man up by the collar and shot him again in the neck. The appellant turned from his dead victim (Boatwright) and fired the now-empty weapon once more at Hill before fleeing. Although partially paralyzed, Hill survived to testify against appellant at his trial.
Appellant first argues that he was denied effective assistance of counsel in that his trial counsel failed to interpose a timely objection to commencement of trial one day beyond the period prescribed by Pa.R.Crim.P. 1100(e)(2),*fn2 which requires commencement of trial within 120 days of the date of remand when an appellate court grants a new trial. The chronology relevant to appellant's Rule 1100
claim may be summarized as follows: On January 29, 1976 this Court reversed appellant's first conviction and remanded for a new trial. Under Rule 1100(e), the Commonwealth was required to commence trial by May 27, 1976.*fn2a On May 4, 1976, the trial court granted, without defense objection, the Commonwealth's petition for extension of time for sixty days. Thus, the deadline for commencement of trial was extended to July 27, 1976.
On July 22, 1976, appellant was arraigned for trial before Judge Geisz. At that time, the following discussion was held in appellant's presence between the court and appellant's trial counsel:
[Assistant District Attorney]: Your Honor, Commonwealth of Pennsylvania will now move for trial and ask that the defendant be arraigned on the following three Bills of Indictment . . .
THE COURT: . . . I see. This is a case with a 1972 date on it. Does that run into any problem of -- is this -- has this case -- a new trial been granted in this --
[Defense Counsel:] Yes, Your Honor.
THE COURT: Could you explain, Mr. [defense counsel]?
[Defense Counsel:] A new trial was granted in this case by the Supreme Court of Pennsylvania, your Honor, and as I understand it, the Commonwealth is now moving to retry the entire case.
THE COURT: I see. And is it within the ninety days that is required to be tried?
[Defense Counsel:] It is within one hundred --
[Assistant District Attorney:] It is within the time period, your Honor, that is correct.
[Defense counsel:] The time period, your Honor, as I understand it, runs on the 27th day of ...