*1 disinterested, and fair ally compelled impartial after a ” presented.’ that had been testimony assessment of the (Footnotes omitted.) in (Emphasis original.) Gilman, supra, Commonwealth v. 368 A.2d at Pa. at 258. case, object
In counsel’s failure to defense constitut- prosecution’s credibility remarks as to appellant’s is counsel, and appellant ed the ineffective assistance of entitled to a new trial.
ROBERTS, Justice, dissenting. For in my dissenting opinion reasons set forth Hubbard, 472 Pa. v. Manderino, J., I (1977) (Roberts, J., dissenting), joined by evidentiary hearing remain of the view that a remand for an ‘reasona on the ineffectiveness of counsel was useless. “No has ble basis to effectuate’ interests” designed been, would indeed, or have which been, presented could when justify object either trial counsel’s failure district attorney expressly repeatedly branded liar, trial counsel’s post-verdict counsel’s failure to raise Id., 288, 372 at 700-701. ineffectiveness. 472 Pa. at A.2d it trial, just new as This case should be remanded for a should have been months twenty-nine ago.
Order vacated and Lowenthal, Philadelphia, appellant. Charles for Div., Lawler, Chief, Asst. Dist. Atty., Robert B. Appeals for Philadelphia, Jane Cutler Asst. Dist. Greenspan, Atty., appellee. EAGEN, ROBERTS, NIX, J., O’BRIEN,
Before C. and LARSEN, MANDERINO and JJ. THE COURT
OPINION OF ROBERTS, Justice. murder of
A Robert of jury Polsky guilty found the third of an instrument of crime. degree possession appel- The Court of Common Pleas of denied Philadelphia appellant. lant’s written motions and sentenced post-verdict On these renews his claim under Pa.R. appeals, appellant 1100(a)(2) him should have charges against
Crim.Proc. necessary been dismissed with Factual issues prejudice. resolution of have not been resolved. We appellant’s claim therefore remand the for a new hearing.1
On August complaint charging appellant was filed weapons criminal homicide and several offenses and an arrest warrant issued. Later the same federal day agents located arrested him appellant North Carolina and on charges violating of interstate laws. Federal fugitive charges were nol remained in prossed, custody but in North record does when Carolina. The not establish location, what ef Philadelphia police appellant’s learned fort was made to secure return to Pennsylvania, or if and when his return. It establishes appellant opposed n only that o October after the com sixty-seven days plaint filed, a form he waived appellant signed stating extradition, on October 16 went to North Philadelphia police *3 him, Carolina and arrested on Philadelphia and October 17 police returned to for appellant Philadelphia preliminary arraignment. 1976,
Appellant brought 9, was not to trial until 246 April days after the was filed. At no the complaint time has sought Commonwealth an extension of time to pursuant 1100(c). 1, 1976, Rule April On moved under Rule 1100(a)(2) to charges prejudice. dismiss all with Rule 1100(a)(2) directs that in a court case in which a “[t]rial written complaint against is filed the defendant after June Appellant discharge ground irregularities 1. also seeks on the that irregularities occurred in his extradition. We cannot conclude that in discharge following extradition afford a basis for trial in the demand- Krall, 215, ing state. Cf. 452 488 Pa. (1973) (allegedly illegal conviction). vacating arrest not a basis for Appellant discharged also contends he should be because the evi- contention, too, support dence was insufficient to the This verdicts. is without merit. Appellant grounds (1) seeks a new trial on the the trial court admitting purported (2) weapon, erred in into evidence the murder prosecuting attorney prejudicial opening the made at remarks both closing (3) arguments, preliminary hearing and and the and trial ruling evidentiary courts erred in on several other matters. In view disposition, of our we need not now these claims. address
363 eighty hundred later than one 30, commence no 1974 shall is filed.” which the complaint date on (180) from the days under Rule period mandatory day the Appellant claimed the 7, 1975, the date run on 1100(a)(2) began August to In the filed, expired February and was complaint Commonwealth, began mandatory period the view of the ar- appellant’s preliminary date of the October April until expire and did not raignment Philadelphia, in claimed the Commonwealth Alternatively, 13, 1975, a 7 to October August extradition from opposed the within and was “unavailable” period days, of sixty-seven 1100(d)(1)during period.2 of Rule meaning first with the Commonwealth’s hearing agreed The court law, that, mandatory matter of the contention as a ar- preliminary until period did not commence the did not address on October 17. The court raignment that appellant alternative contention Commonwealth’s trial, 1100(d)(1). The case went “unavailable” under Rule verdicts, followed.3 appeals the and these jury returned not, cannot, dispute does The Commonwealth and indeed that the holding that the of common erred pleas court re- period began only upon appellant’s mandatory day arraignment. turn to and his Pennsylvania preliminary to a court complaint presented the situation where a is “[I]n issued, begin and a warrant the criminal court, thus, for the presentation complaint of the the is filed and purposes complaint of Rule deemed running presenta- commences with the mandatory period Mitchell, 553, 559, 372 A.2d tion.” Commonwealth v. 472 Pa. Instead, Common- (1977) (footnote omitted). *4 1100(d)(1), such 2. Under Rule “there shall be excluded . period delay any stage from . of at of the as results unavailability attorney.” the of the defendant or his judgment Appellant appeal of from the took a direct to this Court Appellate Jurisdiction sentence on the murder conviction. See Court 673, II, 202(1), art. P.S. § Act of Act of P.L. 211.202(1) (Supp.1978). appealed judgment the of sentence on He § Superior possession of an instrument of crime to the conviction for id., 503(c), appeal the See § Court and that court transferred here. 211.503(c). 17 P.S. § adju- wealth relies its claim raised but not upon alternative dicated in the court that was “unavaila- hearing 1100(d)(1) ble” under Rule for the between sixty-seven days August 7, 1975 and 1975. The October now of period sixty-seven days submits that this should be excluded from the 246 between and trial. days complaint
The Commonwealth’s
claim that
was “unavaila-
ble” cannot be resolved on the
record. The Com-
present
ment to Rule 1100
that “the
should be
provides
defendant
he
any period
deemed unavailable for
of time
which
during
could not be
because his
were
apprehended
whereabouts
unknown and could not be determined
due
In
by
diligence.”
Mitchell,
Commonwealth v.
relied
the
supra,
upon
Court
Comment to conclude that the Commonwealth is not entitled
exclusion unless it establishes
“unavailability”
by
of
due
preponderance
the evidence that
acted with
police
diligence in
an arrest warrant.
472 Pa. at
executing
Kovacs,
In these the order mo- denying appellant’s tion to The dismiss under Rule 1100 must be vacated. record is remanded to Pleas of Phila- the Court of Common for a in accordance with delphia hearing adjudication this opinion. Should the court conclude that hearing Commonwealth, 4. The record reveals that the to establish and, “unavailability,” prepared present testimony appel- over objection, correspondence lant’s with North officials. The Carolina hearing court did not rule on this evidence. *5 1100, it shall with Rule comply failed the Com- concludes If the court relief. grant appropriate shall reinstate Rule it with complied monwealth appeals proper adjudication, court’s Following the order. adjudica- well as as adjudication be taken from may otherwise waived. here decided or tions not consistent for proceedings Record remanded opinion. in the consideration
MANDERINO, J., not participate did of this case. decision LARSEN, J., dissenting opinion. filed a LARSEN, Justice, dissenting. dissent; sixty- for the was unavailable
I this defendant Thus, judgment I would affirm day period. seven sentence. Pennsylvania, Appellee,
COMMONWEALTH of SUTTON, Appellant. Clarence Pennsylvania. Supreme Court of April Submitted Decided