No. 125 E.D. Appeal Dkt. 1984, Discretionary Appeal from the April 19, 1984 Order of the Superior Court at Philadelphia, 1982, No. 815, Remanding for an Evidentiary Hearing on Defendant's Direct Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of May Session, 1981, Nos. 2547-60, 327 Pa. Superior Ct. 594, 474 A.2d 671 (1984).
Gaele McLaughlin Barthold, Chief, Prosecution Apls., Eric B. Henson, Deputy Dist. Atty., Garold E. Tennis, Asst. District Atty., Philadelphia, for appellant.
Robert J. Leibowitz, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. Zappala, J., concurs in the result.
The Commonwealth appeals by allowance an order of Superior Court, 327 Pa. Super. 593, 474 A.2d 671 remanding this case to the Philadelphia Court of Common Pleas for an evidentiary hearing on two issues raised by direct appeal from sentence imposed on appellee, Timothy Forrest. A jury found appellee guilty of two counts of aggravated assault, two counts of robbery, kidnapping by force, threat or deception and unauthorized use of a vehicle. Common Pleas sentenced him to nineteen to forty-one years imprisonment. On the appointment of new counsel, appellee raised claims that his court appointed trial counsel was ineffective*fn1 for inadequately pursuing his Rule 1100 issues. The Commonwealth has sought our review claiming that Superior Court misconstrued our holding in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) and has, thus, improperly imposed on the prosecution a burden to prove due diligence when a defendant reaches that issue through a claim of trial counsel's ineffectiveness.*fn2
The charges against appellee arose out of an incident on June 25-26, 1977, during which appellee and a companion approached and forced their way at gunpoint into a van as it was being started by its owner. On taking control of the van, the men robbed the owner and his female companion. The van owner was pistol-whipped and the woman was raped by both assailants. She was then shot in the head at point-blank range. The woman survived, although she was severely and permanently maimed and a bullet remained
lodged in her spine. Notes of Testimony, October 27, 1981, pp. 102-106.
A complaint was filed against appellee on June 30, 1977. Despite the dogged efforts shown on the record, Notes of Testimony, August 25, 1981, pp. 4-23, the Philadelphia police were unable to locate appellee until July of 1980, when they were advised by the Cape May, New Jersey, police that appellee was incarcerated there on charges unrelated, but similar in nature, to the charges lodged against him in Philadelphia. Appellee was returned to Philadelphia from Cape May on April 1, 1981, in the custody of the Philadelphia police. A preliminary hearing was held on May 14, 1981.
On May 19, 1981, the District Attorney filed a petition for a rule on appellee to show cause why an order extending the time for trial under Pa.R.Crim.P. 1100 should not be granted. This petition alleged: (a) the date the complaint against appellee was filed, June 30, 1977; (b) an unextended run date of December 27, 1977, 180 days from June 30, 1977, and (c) the Commonwealth's inability to proceed to trial by December 27, 1977, because of appellee's unavailability during the entire time the arrest warrant was outstanding. The prosecution requested an extension of the period for commencement of trial to September 28, 1981, i.e. 180 days from appellee's return to Philadelphia on April 1, 1981.
Appellee, in turn, filed a "Motion to Quash Return of Transcript Nunc Pro Tunc" on May 29, 1981. On June 12, 1981, the Public Defender asked to withdraw and the court ordered appointment of private counsel. Appellee was still represented by the Public Defender at conference on July 16, 1981, when a joint continuance was requested and entered until August 5, 1981. The Commonwealth then requested a continuance to August 20, 1981, and then extended it to August 25, 1981 because of the unavailability of a detective witness who had ...