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filed: February 1, 1985.


No. 00526 Pittsburgh 1983, Appeal from the Judgment of Sentence April 15, 1983 in the Court of Common Pleas of Clearfield County, Criminal No. 397 May Term, 1972.


Frederick J. Ammerman, Assistant District Attorney, Clearfield, for Commonwealth, appellant.

John Woodcock, Jr., Public Defender, Hollidaysburg, for appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ.

Author: Olszewski

[ 338 Pa. Super. Page 618]

In this case the Commonwealth appeals from a lower court order discharging appellee from custody.

This case has a long and tortuous history. Logan Warren McLaughlin was indicted September 25, 1972 on a general charge of murder stemming from the slaying of his wife. On December 20, 1973, appellee entered a plea of guilty to a charge of second degree murder pursuant to a plea bargain. The court accepted the plea and on March 20, 1975, Mr. McLaughlin was sentenced to ten to twenty years in a state correctional institution.

Appellee appealed the entry of the guilty plea and the Supreme Court reversed the judgment of sentence and remanded the case with instructions that appellee be permitted to withdraw his guilty plea. Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976). The plea was withdrawn and on February 8, 1977, appellee had a jury trial on a general charge of murder. On February 12, 1977, the jury found appellee guilty of second degree murder. He was sentenced to ten to twenty years in the state correctional institution at Rockview.

Mr. McLaughlin once again appealed and once again the Supreme Court reversed the judgment of sentence and remanded the case for a new trial. Commonwealth v. McLaughlin, 485 Pa. 267, 401 A.2d 1139 (1979).

Following the Supreme Court's remand, the District Attorney of Blair County replaced the District Attorney of Clearfield County as the Commonwealth's representative in this case. This move was prompted by the initial decision in Commonwealth v. Miller, 281 Pa. Super. 392, 422 A.2d 525 (1980). Prior to the commencement of appellee's second trial, the Commonwealth filed several petitions for extension of time for the commencement of trial. The initial petition was filed September 18, 1979,*fn1 and was granted on

[ 338 Pa. Super. Page 619]

September 28, 1979. This grant extended time through November 30, 1979. A November 16, 1979, petition was also granted extending time through the last day of February, 1980. A third petition for extension was timely filed on February 28, 1980, and a hearing on this petition was scheduled for March 15, 1980.

At the March 15, 1980 hearing, defense counsel, Richard H. Milgrub, the Public Defender of Clearfield County, requested permission to withdraw from the case. The Clearfield County public defender likewise claimed a conflict of interest as defined in Commonwealth v. Miller, supra.

Following an extensive on-record colloquy between the court, prosecutor, defense counsel and defendant, the request to withdraw as counsel was granted. In its colloquy, the lower court directed Mr. Milgrub to secure substitute counsel for appellee, then and now indigent.*fn2 The court then advised Mr. McLaughlin that the need to obtain and prepare new counsel would necessarily cause a delay, and that this delay would be attributed to him and not to the Commonwealth for purposes of Rule 1100. It is undisputed that throughout the colloquy appellee demonstrated both understanding and acquiescence. Upon conclusion of the colloquy, the lower court tabled the Commonwealth's outstanding petition for extension along with appellee's pro se petitions seeking dismissal under Rule 1100 and recusal of the trial court. The case was then continued until such time as new counsel indicated his readiness to proceed with the case. No further petitions for extension were filed by the Commonwealth and no formal entry of appearance by counsel was ever made on behalf of Mr. McLaughlin.

On December 1, 1980, the case was called for jury selection and the lower court also heard testimony regarding

[ 338 Pa. Super. Page 620]

    appellee's outstanding motions tabled because of counsel's withdrawal.*fn3 The lower court denied appellee's petition seeking recusal on December 1, 1980 and on December 2, 1980, also denied the petition seeking dismissal. The case proceeded to trial and on December 5, 1980, the jury found Mr. McLaughlin guilty of second degree murder. Post-trial motions were argued before the court on October 15, 1982. On March 29, 1983, the lower court granted appellee's motion in arrest of judgment and discharged Mr. McLaughlin from custody. The lower court based its order and discharge on an alleged violation of Rule 1100.

The Commonwealth contends that the lower court erred in finding a Rule 1100 violation. The Commonwealth advances alternative theories to support its contention. First the Commonwealth asserts that appellee was not entitled to relief under Rule 1100 since he waived his Rule 1100 rights at the March 15, 1980 hearing. Alternatively the Commonwealth claims that the lower court erred when it refused to exclude, for Rule 1100 computation purposes, the entire period of March 15, 1980 through December 1, 1980, as a period when either the defendant or his attorney was "unavailable" for trial. We reject both Commonwealth theories and affirm the order judgment of sentence of the lower court.

On March 15, 1980, the trial court continued the case indefinitely so that new counsel could be appointed and become acquainted with the proceedings. No date was ever set for the expiration of the continuance.*fn4 In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), the

[ 338 Pa. Super. Page 621]

Supreme Court announced that ". . . in the future we will require that continuances be granted for a specified time . . ." Id., 477 Pa. at 406, 383 A.2d at 1271. Clearly, the continuance granted on March 15, 1980, violated this rule. The question before this Court, therefore, is what effect does this violation have on appellee's purported waiver of his Rule 1100 rights.

In Commonwealth v. Hensley, 295 Pa. Super. 225, 441 A.2d 431 (1982), a panel of this Court was faced with essentially the same issue. In Hensley, we cited the Coleman decision and concluded that the waiver in that case was defective because it failed to state the period of the continuance. However, we further held that the defect was later cured when the lower court advised the appellant on the record of his Rule ...

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