NO. 83 EASTERN DISTRICT APPEAL DOCKET 1982, APPEAL BY ALLOWANCE FROM THE ORDER OF THE SUPERIOR COURT AT PHILADELPHIA 1981, NO. 384 ENTERED DECEMBER 27, 1982 REVERSING THE ORDER OF THE COURT OF COMMON PLEAS OF PHILADELPHIA, CRIMINAL TRIAL DIVISION, AT OCTOBER TERM, 1974, NOS. 1619-1620 ENTERED JANUARY 12, 1981, 301 Pa. Superior Ct. 223,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., and Nix and Zappala, JJ., concur in the result.
This matter is before us on the Commonwealth's appeal by allowance from an order of Superior Court, 301 Pa. Super. 223, 447 A.2d 622, reversing a Philadelphia Court of Common Pleas order denying appellee Dunbar's petition for post-conviction relief. Superior Court held trial counsel was ineffective for failing to file a motion to dismiss under Pa.R.Crim.P. 1100(f)*fn1 and discharged appellee. The Commonwealth argues that trial counsel cannot be deemed ineffective for failing to anticipate that our appellate courts would refuse to exclude delays resulting from the unavailability of a co-defendant's counsel under Pa.R.Crim.P. 1100(f). Moreover, the Commonwealth maintains that trial
counsel reasonably believed that appellee's January 31, 1975 waiver was a valid unlimited waiver. We agree and, therefore, reverse the order of Superior Court.
On August 28, 1974 appellee was charged with manufacturing, delivering or possessing a controlled substance with intent to deliver, and possession of an instrument of crime. His trial began on February 3, 1976, 524 days later, but only 33 days after the extended run date as recalculated by appellee himself. See pp. 594-597, infra. The trial court granted fifteen continuances during the interim.
On September 6, 1974 the preliminary hearing was continued until October 9, 1974 because a Commonwealth witness was not available. On October 9, 1974 the case was continued until November 7, 1974. Appellee was indicted October 29, 1974 and arraigned on November 7, 1974. On December 3, 1974, the record shows an unsigned Rule 1100 waiver and a continuance until December 30, 1974. On December 30, 1974 the trial court continued the case until January 31, 1975 because the Commonwealth was not prepared. On January 31, 1975 appellee executed a Rule 1100 waiver in open court and the trial court continued the case to April 4, 1975 because appellee's attorney was scheduled to appear in federal court. On April 4, 1975 the trial court continued the case to May 5, 1975 because appellee's counsel was on trial. On May 5, appellee executed a waiver of his Rule 1100 rights in open court in the presence of counsel and the case was continued to June 11, 1975. On June 11, 1975 defense counsel was engaged elsewhere once again and the trial court continued the case to August 11, 1975.
On August 11, 1975 the matter was continued to August 19, 1975 because co-defendant's attorney was unavailable. On August 19 appellee's counsel failed to appear and the case was continued until September 23, 1975. On September 18, 1975 the trial court continued the matter to October 30 because appellee's counsel was on trial. On October 30, 1975 the trial court continued the case until December 11, 1975 because co-defendant's counsel was on trial and again from December 11 to December 18, 1975 because co-defendant's
counsel was on vacation. On December 18, 1975 appellee again waived Rule 1100 and the case was continued to January 6, 1975. Finally, trial began when the trial court heard a motion to suppress on February 2, 1976.
At the conclusion of trial, the trial judge found appellee guilty on both charges. Appellee, represented by trial counsel, appealed to Superior Court and that court affirmed the judgment of sentence. Commonwealth v. Dunbar, 250 Pa. Superior Ct. 585, 379 A.2d 585 (1977). Thereafter, in January of 1978, appellee filed a pro se petition alleging ineffective assistance of trial counsel for failing to file a motion to suppress evidence obtained pursuant to an unlawful arrest. Common Pleas appointed new counsel for appellee and that counsel filed an amended petition which included the charge that trial counsel was ineffective for failing to file a motion to dismiss under Rule 1100(f).
Following an evidentiary hearing Common Pleas found that trial counsel reasonably believed that it was in appellee's best interests to continue the case on a number of occasions and that trial counsel was not ineffective for failing to file a motion to dismiss under Rule 1100(f).
On appeal, Superior Court excluded the 227 day delay attributable to the unavailability of appellee's attorney. It also assumed that all three of appellee's Rule 1100 waivers were limited to the period between the date of the continuance and the date to which the trial was rescheduled. Based on that assumption, it held that, even excluding the 83 day period encompassed by those waivers, the total excludable time was 310 days. On that view, appellant would have been brought to trial within 213 days or 33 days after the recomputed run date.*fn2 Without comment, however, Superior Court ...