No. 513 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Criminal Division, Nos. 392 and 393 April Term, 1975.
Louis S. Gold, Pittsburgh, for appellant.
Patrick H. Mahady, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files a Concurring Opinion. Van der Voort, J., files a dissenting statement.
[ 278 Pa. Super. Page 601]
Appellant contends, inter alia, that his trial counsel was ineffective for failing to file a motion to dismiss the charges against him after the expiration of the 180 day period prescribed by Pa.R.Crim.P. 1100(a)(2).*fn1 We agree and, accordingly, reverse the order of the court below and discharge appellant.
On December 17, 1974, a complaint was filed charging appellant with two counts of unlawful possession of a controlled substance with intent to deliver. Appellant was not arrested until December 27, 1974. Trial was initially scheduled for June 18, 1975, 183 days after the complaint was filed. On that date appellant's counsel requested a continuance until the next term of court. At a hearing on the proposed continuance, appellant's counsel informed the court: "I explained to [appellant] that he has a right to a speedy trial and the 180 days would have been exceeded by the next term of Court, and it's still his desire to have the case continued and waives the 180 day rule." At the court's request, counsel questioned appellant directly. After appellant indicated that he wanted the case to be continued until the next court term, the following colloquy occurred:
[Defense Counsel:] And I explained to you the 180 day rule; you must be brought to trial within 180 days, and I have explained that having this case continued to the next term of Court would exceed the 180 day rule, is that correct?
[Defense Counsel:] And it's still your intention to have the case continued?
[ 278 Pa. Super. Page 602]
[Defense Counsel:] And you waive the ...