No. 79 Harrisburg, 1981, Appeal from the PCHA Order of February 27, 1981 In the Court of Common Pleas of Dauphin County, Criminal Division, No. 1955, 1956, 1958 C.D. 1975.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Wickersham and Rowley, JJ. Wickersham, J., files a dissenting statement.
[ 311 Pa. Super. Page 156]
Appellant, Philip James Hughes, takes this appeal from the order of the lower court dismissing without a hearing appellant's petition under the Post Conviction Hearing Act (PCHA). For the reasons set forth below, we hereby reverse and remand for a hearing.
[ 311 Pa. Super. Page 157]
In his PCHA petition, appellant alleges that he was arrested on August 20, 1975 and charged with two counts of possession with intent to deliver (heroin and cocaine) and with carrying firearms. For purposes of Pa.R.Crim.Pro. 1100, the initial rundate was February 16, 1976. The record shows that appellant's case was originally scheduled for trial on January 19, 1976, but the case was continued to February; a notation on the docket, dated January 23, 1976, says only that a petition for extension of time was granted. The docket does not reveal who requested this continuance or who was present. On February 6, 1976, the case was again continued; as before, the docket gives no other information regarding the continuance and, in fact, does not even list a new trial date.
The next docket entry was made on March 11, 1976. This entry reads: "Waived Rule 1100 (180 days) in open court. Case continued until April Term 1976". The transcript, which consists of only one page, does not indicate the presence of appellant. Rather, the record reflects that appellant was at that time in Huntingdon Prison. Appellant's case vis-a-vis Rule 1100, was not in any meaningful sense discussed at this hearing. The Commonwealth recited that it was ready to proceed on March 9, 1976 but that defense counsel would on that date be unavailable because he was scheduled to try another case. Defense counsel then related that since appellant was in Huntingdon Prison, counsel was requesting a continuance to the April term. The court granted the continuance.
The next notation on the docket was made on April 8, 1976 and, once again, the record only says that the 180 day rule was waived and the case continued. The same "waiver" was again noted on the docket on May 28, 1976. Next, several more continuances, although without waivers, were noted on the docket. Appellant was ultimately brought to trial on September 22, 1976, 399 days after the filing of the complaint, and convicted. Appellant's case was appealed by an attorney from the public defender's office, and the conviction was affirmed.
[ 311 Pa. Super. Page 158]
A petition for allocatur was filed with the Supreme Court. During the pendency of this petition, appellant filed his first PCHA petition, which was denied because of the outstanding allocatur petition. When allocatur was denied, appellant filed the herewithin PCHA petition. Counsel from the public defender's office was appointed to represent appellant in this matter. Counsel properly raised the alleged ineffectiveness of both trial and appellate counsel for failing to raise the Rule 1100 issue. As was indicated, the lower court dismissed without a hearing this PCHA petition.
At the outset, we note that the section 1180-9 of the PCHA specifically sets forth the situation upon which a hearing may be granted or denied. ...