Appeal from Order of the Superior Court dated November 10, 1986, at No. 1603 Pittsburgh 1985, affirming order of the Court of Common Pleas of Allegheny County, Criminal Division, dated December 5, 1985, at No. CC7307963, granting relief pursuant to the Post Conviction Hearing Act. 362 Pa. Super. 625, 520 A.2d 65 (1986).
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellant.
Erika P. Kreisman, Pittsburgh, for appellee.
Nix, C.j., and Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., did not participate in the consideration or decision of this case. Papadakos, J., files a concurring opinion.
Before the Court for resolution is the Commonwealth's appeal from an order of the Superior Court, 362 Pa. Super. 625, 520 A.2d 65, affirming the hearing court's determination that, as a result of trial and appellate counsels' ineffectiveness, appellee's 1974 conviction for murder of the first degree must be vacated, the sentence of life imprisonment set aside, the appellee discharged from custody and further prosecution for this offense prohibited. This Court granted the Commonwealth's request for further review, and the parties chose to submit the matter on briefs without argument.
This appeal provides another opportunity for this Court to address the vexing problem of repetitive petitions that has arisen under our former Post Conviction Hearing Act (P.C.H.A.), 42 Pa.C.S. § 9541 et seq.,*fn1 and its impact upon the finality of judgments of sentence in criminal cases. For the reasons that follow, we are constrained to conclude that the relief granted below was in error and that the petition should have been summarily dismissed.
The record reflects that appellee was arrested on November 28, 1973. At that time Rule 1100 required that the trial commence within 270 days from the date on which the complaint was filed.*fn2 Thus, the 270th day from the date on which the complaint was filed was August 25, 1974. Appellee and a co-defendant, O'Neal Weathers El, were charged with killing one Kelvin Parker, in the latter's home as a
result of a dispute relating to drugs. The two defendants were listed to be tried together. Appellee was represented by privately engaged counsel. A pro se, joint motion to sever was filed by the defendants, which was granted by Judge (now Justice) Flaherty. The trial of the co-defendant Weathers El concluded on June 3, 1974, and resulted in a conviction of murder in the first degree. The judgment of sentence in that case was affirmed per curiam by this Court on April 7, 1976. Commonwealth v. O'Neal Weathers El, 467 Pa. 13, 354 A.2d 250 (1976). A copy of a memorandum dated June 6, 1974, from the office of the District Attorney indicated defense counsel requested a postponement for appellee. The authenticity of that memorandum was verified by the Assistant who ultimately tried the case against appellee. Additionally the record contains an application for postponement dated September 4, 1974, and consented to by appellee's privately retained counsel. Trial in the case commenced on September 10, sixteen (16) days after the run date. The record reflects that during this period the responsibility of listing cases was handled by the office of the District Attorney*fn3 and that through an administrative error Lawson's case was not tried immediately after the trial of the co-defendant.
A recitation of the lengthy and convoluted procedural history leading to this point in the proceedings is necessary to properly frame the issues presently before us for resolution. After trial without a jury, appellee was convicted of first degree murder on September 10, 1974. Trial ...