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COMMONWEALTH PENNSYLVANIA v. CLYDE WALTER DUKEMAN (11/06/89)

filed : November 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CLYDE WALTER DUKEMAN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lancaster County, Criminal Division at No. 16600D 1987.

COUNSEL

Scott K. Oberholtzer, Lancaster, for appellant.

James J. Karl, Asst. Dist. Atty., Lancaster, for Com., appellee.

Tamilia, Popovich and Hester, JJ. Tamilia, J., concurs in the result.

Author: Popovich

[ 388 Pa. Super. Page 470]

This is an appeal from the order dismissing appellant's Post Conviction Relief Act*fn1 petition without a hearing. In his PCRA petition, appellant alleged that trial counsel was

[ 388 Pa. Super. Page 471]

    ineffective in failing to file a motion for dismissal of the charges pursuant to Pennsylvania Rule of Criminal Procedure 1100. Appellant now contends that the lower court erred in denying PCRA relief without a hearing. For the following reasons, we hold that a violation of Rule 1100 is not a cognizable claim for which relief may be granted under the Post Conviction Relief Act, and we affirm the denial without a hearing of appellant's petition.

The court below denied appellant's petition without a hearing on the ground that a violation of Rule 1100 did not occur. Rule 1100, in pertinent part, states:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is incarcerated, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

(c) In determining the period for commencement of trial, there shall be excluded therefrom:

(3) such period of delay at any stage of the proceedings ...


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