*1 Pennsylvania COMMONWEALTH DOZIER, Appellant. Allen Pennsylvania. Court of Superior Argued Sept. 20, 1978.
Decided Oct. 29,1978. Dec. Reargument Denied *3 Jenkintown, for appellant. Furey, A. Cheryl with him F. Em- Tucker, Attorney, L. Assistant District Com., Philadelphia, Attorney, Fitzpatrick, District mett appellee. JACOBS, WATKINS, and Judge, President
Before and HOFFMAN, CERCONE, PRICE, VAN der VOORT SPAETH, JJ.
PRICE, Judge: filed complaint a criminal
On December offenses. him with various charging against robbery guilty was found he was denied claims that assault. simple his because in the court below of counsel effective assistance fashion a violation assert in timely failed to trial counsel areWe to a trial.1 1100 right his Pa.R.Crim.P. with claim. to agree constrained counsel, we a claim of ineffectiveness resolving In ex in proclaimed the standard guided by are Maroney, Washington rel. assistance is ceases and counsel’s (1967): inquiry “[O]ur to con we are able effective once constitutionally
deemed
had some
course chosen
counsel
particular
clude that
inter
his client’s
reasonable basis
to effectuate
designed
in Com
Court, however,
Supreme
ests.” The Pennsylvania
687, 696
Hubbard,
259, 278, 372 A.2d
Pa.
monwealth v.
when the claim
explained that
(1977), further
“[i]t
that we
merit
arguable
was of
foregone
which was
[sic]
counsel’s
for the
into the basis
inquiry
must make an
[trial]
Thus,
initial
the matter.”
pursue
decision not
“[t]he
reasonable
this
applying
be considered
factor which must
counsel is
claim which
is whether
basis standard
[trial]
Id.,
basis.”
had some reasonable
with not
charged
pursuing
*4
277,
695.
371 12,1975, the to trial.2 March 1975, to the bring negoti- to a before the court below enter appellant appeared plea colloquy, an guilty ated After extensive guilty plea. he not hearing the did judge informed directed hearing judge wish then plead guilty. to suppress on the oral motion to parties proceed appellant’s to hear- suppression hearing, end of the evidence. At the his decision on motion ing appellant’s reserved judge 17, Trial eventu- be on March 1975.3 listed the case to tried 21,1975, filing 205 July days on ally commenced the complaint. now argues appellant’s
The Commonwealth began timely a was not violated because trial trial 1975, motion 12, when the on hearing appellant’s on March however, asserts commenced. The suppress 21, 1975, or not commence until after that trial did question The initial expiration period. of the mandatory in the us is when did commence therefore before “trial” instant case. 1100, trial commences when Rule
Normally, under present and parties ascertains that the are lower court motion which hearing to the proceed any orders them to 250 v. Byrd, had for trial. Commonwealth been reserved 1100, Com Pa.Super. Lamonna, 248, 373 ment; see also Commonwealth 254 Pa.Su (1977). In Commonwealth v. Taylor, A.2d 1355 hearing that a (1978), we per. expounded A.2d not for trial will motion which had been reserved on a unless Rule 1100 under signify commencement time and resources “. .it reflects a commitment of guilt-determining and leads into the directly below Thus, 215, 385 A.2d 986. Id., Pa.Super. at at process.” 1100(a)(2) provides “Trial court case in that: in a 2. Pa.R.Crim.P. against complaint June is filed the defendant after which a written eighty (180) than no later one hundred 1974 shall commence complaint which the is filed.” from the date on judge appellant’s that he would list 3. stated record shows that be on March case to tried actually March to be tried on listed case *5 on a motion will mark the commencement of trial hearing (1) under Rule 1100 if the accused is warned adequately hearing that the has been reserved until the time of trial (2) and hearing actually directly guilt-de- leads into termining process. requirements Neither of these was satis- fied in the instant case. the record shows that the hearing on the suppress motion to was not reserved explicitly trial,
for contends suppression Commonwealth that the hearing did constitute the commencement of trial because of states, procedures established Phila.R.Crim.P. which by in for in part, “[mjotions suppression felony listing room cases will for at trial . . .” hearing be scheduled . circumstances, some Perhaps, under a defend- might persuasively provides assert that this Rule trial, ant with notice that of Rule adequate purposes his suppression hearing. will commence with Instant- however, negated the Rule was ly, effectively by hearing judge, who declared to the without adamantly Commonwealth, objection by suppression “[the Furthermore, is not hearing] appel- the trial.” even if the lant had been warned that his adequately suppression hear- trial, ing had been reserved for the time of clearly record appellant’s suppression shows that the did not lead directly guilt-determining process. into the The jury panel was not sworn both counsel and addressed 21, 1975, until July days suppression hearing. after the requirements regard Since of Rule 1100 to trial satisfied, not reject commencement were we must Com- argument, monwealth’s based on Phila.R.Crim.P. commenced on March 1975. “. . timely [A] rule of a court of common procedure adopted by pleas cannot be used as means to our rules of a circumvent procedure.” Commonwealth v. Julius Pugh, 1(b). n. 4 we have determined that the was not Since 21,1975, until brought filing to trial appel- we must now ascertain whether the complaint, It trial was violated. thereby lant’s mandatory periods delay beyond all axiomatic that *6 “ compu- excluded from the . . must be either period ‘. an by 1100(d)] justified Pa.R.Crim.P. or period, tation the [of the to terms of pursuant an extension the granting order pre- is to if the Commonwealth 1100(c)] rule [Pa.R.Crim.P. ” Shelton, 469 8, 14-15, 364 v. Commonwealth vail.’ Pa. O'Shea, 465 Commonwealth v. quoting 694, (1976), A.2d 697 872, (1976). Pa. 350 A.2d 874 The Commonwealth 1100(c) under petition never filed a to extend Pa.R.Crim.P. record in case. We must therefore examine the instant the be excluded periods may to of any delay determine whether the of the under prescribed period from the computation 1100(d). provisions of Pa.R.Crim.P. for 1100(d) provides period that the excluding computed by of be
commencement trial shall unavailabil “(1) which results from the any delay therefrom in (2) continuance attorney; or his ity any of the defendant the at of (30) request the thirty days granted excess of period the only his that attorney, provided defendant or (30th) shall be so excluded.” beyond day the thirtieth be in this case can period delay record shows that one appel June the appellant.4 attributable to the June lant the case be continued until requested is not reason for this delay twenty 1975. The however, assume, Even if we apparent on the record. appellant the the of the unavailability was caused delay by or exclude from the twenty days his and therefore attorney it is clear day period, 180 computation appellant was not tried.5 timely responsible was not
4.
admits that
The Commonwealth
delay
in
critical
this case.
motions,
appellant’s
post-trial
was not
in
claim
raised
subsequently
orally during
it
The lower court
was raised
trial.
appellant’s
court was
on
claim.
the lower
Since
conducted
claim,
appellant’s
opportunity
have
we
an
to consider
afforded
appellant’s
in
to facilitate the
merits of
claim
order
reviewed the
Smith,
justice.
Commonwealth v.
efficient administration of
Cf.
Hubbard,
v.
385 A.2d
Commonwealth
Pa.
250 Pa.Su
Recently,
Byrd,
Commonwealth
(1977),
we held that
there
per.
fail to
legal
attorney
.no reasonable
basis for an
to
to
trial under
to a violation of his client’s
object
Here,
record
shows that the
clearly
Pa.R.Crim.P. 1100.”
trial within
failed to
bring
If the
trial counsel had
mandatory period.
the lower court under Pa.R.Crim.P.
properly petitioned
1100(f) to dismiss the
charges against
Instead,
been
trial counsel did
petition
granted.
would have
trial claim
appellant’s speedy
not assert
until
and addressed
both counsel
jury panel had been sworn
had
commenced
already
prior
and the court.
Since
1100(f)
trial counsel’s
and since Pa.R.Crim.P.
re
request,
1100 be filed
quires that a
to dismiss under Rule
petition
*7
trial,
denied trial counsel’s
prior
correctly
lower
Perkins,
as
Commonwealth v.
request
untimely.
1100(f). We are
(1977);
VAN der files a opinion. WATKINS, HOFFMAN, J., former President Judge, in the or participate did not consideration decision this case. VOORT, Judge, dissenting:
VAN der
I
for the
in my
dissent
reasons set forth
respectfully
v.
Byrd,
Pa.Super.
in Commonwealth
Dissenting Opinion
(1977).