No. 274 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 2048, 2049, 2050, and 2052 October Term, 1976
Martin A. Ostrow, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 279 Pa. Super. Page 541]
Appellant, Aaron Helms, was convicted on June 16, 1977 following a non-jury trial for robbery (two counts), possession of an instrument of crime and conspiracy.*fn1 Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of two and one-half to six years.*fn2 New counsel was then appointed and this appeal followed.
The sole issue raised on appeal is whether trial counsel's failure to petition the court for dismissal of the charges pursuant to Pa.R.Crim.P. 1100 constituted ineffective assistance of counsel.*fn3
The criminal complaint against appellant was filed October 8, 1976, thus requiring commencement of trial on or before April 6, 1977. Prior thereto, however, on March 23, 1977, the Commonwealth timely petitioned the lower court for an extension of time within which to commence trial.*fn4
[ 279 Pa. Super. Page 542]
On March 31, 1977, that request was granted and the trial date extended to no later than June 4, 1977.
Appellant subsequently consented to Rule 1100 waivers to, respectively, June 6, and June 8, 1977. On the latter date, the trial judge to whom the case had been assigned was ill and trial did not commence until June 15, 1977. Nonetheless, no additional Rule 1100 waiver was obtained from appellant, nor was a petition presented to the court by the Commonwealth seeking a further extension of time in accordance with Rule 1100(c).
While it is clear that appellant was not brought to trial within the prescribed 180-day period required by Rule 1100, trial counsel first raised the issue in its post-verdict motions. However, since the issue had not been raised either before or during trial, the lower court properly held it to have been waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285 (1974).
The question of effectiveness of trial counsel, however, constitutes a necessary exception to such rule concerning waiver. Thus, since the issue had not been waived at any time after the termination of representation by the counsel whose effectiveness is presently questioned, we may consider trial counsel's alleged ineffectiveness. See Commonwealth v. Fricke, 250 Pa. Super. 370, 378 A.2d 982 (1977); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975); ...