No. 1420 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Crim. Div., at No. 2029, 2030 April Term 1977.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Sugerman and Stranahan, JJ.*fn*
[ 278 Pa. Super. Page 248]
Appellant was sentenced for criminal conspiracy,*fn1 robbery,*fn2 possession of an instrument of crime,*fn3 and recklessly endangering another person.*fn4 The issues on this appeal are
[ 278 Pa. Super. Page 249]
whether the lower court should have discharged appellant on the basis of Pa.R.Crim.P. 1100, and whether appellant's trial counsel was ineffective.
On February 17, 1977, the complaint against appellant was filed. On April 14, he was arrested. On April 22, a preliminary hearing was conducted and appellant was held for trial. On May 10, appellant was arraigned. On May 27, appellant requested, and was granted, a continuance until June 15. On June 15, the Commonwealth requested, and was granted, a continuance until July 6. On July 6, the judge recused himself and the case was continued until July 13. On July 13, the case was listed in error and continued until August 25. On August 25, appellant's motion to suppress was heard, and appellant requested, and was granted, a continuance until September 21. On September 21, the Commonwealth and appellant jointly requested, and were granted, a continuance until October 6. On October 6, the court ordered a continuance until November 3 because of "Pre-trial motion outstanding." The record does not make clear what motion was outstanding, but appellant in his brief suggests that the motion was his motion to dismiss under Pa.R.Crim.P. 1100(f); this motion was marked as received in the prothonotary's office on October 7. On October 21, a hearing on the motion to dismiss was continued. No reason for the continuance appears of record. On November 3, the case was again continued because of "Pre-trial motion outstanding," and trial was scheduled for December 2. On November 4, the hearing on the motion to dismiss was continued until November 18 because there was "no file." Also on November 4, the Commonwealth filed a petition to extend under Pa.R.Crim.P. 1100(c). On November 18, a hearing on the motion to dismiss and the petition to extend was held. The motion to dismiss was denied and the petition to extend was granted, the trial date being extended to December 5. On December 2, the trial commenced.
Since the complaint was filed on February 17, Pa.R.Crim.P. 1100(a)(2) required that appellant be brought to trial within 180 days, or on or before August 16. Any delay after
[ 278 Pa. Super. Page 250]
that date "must be either excluded from computation of the 180 days under section (d) of Rule 1100 or be justified by an order granting an application by the Commonwealth for an extension of time pursuant to section (c)." Commonwealth v. Lamonna, 473 Pa. 248, 253, 373 A.2d 1355, 1357 (1977).
At the November 18 hearing, the lower court found that appellant had been unavailable from the date of the complaint until he was arrested, a total of 56 days. That made the run date October 11. The court also found that appellant had requested continuances on four occasions, the last request being on October 6, when the case was continued to November 3, and that the total delay from these continuances was 82 days. The court then subtracted 30 days from that total, making appellant unavailable for an additional 52 days. That made the run date ...