Commonwealth v. Mott

BROSKY, Judge:

Appellant, Terry C. Mott, was convicted of rape following a non-jury trial on May 17, 1976. Post-verdict motions were filed by new counsel for appellant, who raised, inter alia, the ineffectiveness of trial counsel for having failed to petition the trial court for dismissal of the charge under Pa.R.Crim.P. 1100.

Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of two to ten years. On appeal, we vacated the judgment of sentence and remanded for an evidentiary hearing to determine whether appellant had been denied the effective assistance of counsel. Following a hearing on April 27, 1978, the trial court concluded that since Rule 1100 had not been violated, a petition to dismiss would have been successful. Accordingly, it found trial counsel not to be ineffective. On October 23, 1978, judgment of sentence was reimposed and this appeal followed.

The record discloses that the complaint was filed and an arrest warrant obtained on November 13, 1975. Trial commenced on May 17, 1976. Thus, 186 days elapsed between the filing of the complaint and commencement of trial. Since no extension of time was sought by the Commonwealth pursuant to Rule 1100(c), it was required to establish, by a preponderance of the evidence, that six days should be excluded pursuant to Rule 1100(d). See Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). On remand, the trial court concluded that the Commonwealth had satisfied its burden and denied appellant relief. We agree and, therefore, affirm.

The trial court excluded one day pursuant to Rule 100(d)(2) as a result of the court’s granting a 31-day continuance to appellant from February 6, 1976 to March 8, 1976. It further excluded three days under subsection (d)(1) because it found the police had, despite the exercise of due diligence, been unable to apprehend appellant until his surrender on November 16, 1975, thus rendering him unavailable for the period from November 13 to November 16.¹

A review of the record discloses efforts by the police to locate appellant included visits to his residence on November 13 and 14, 1975; advising appellant’s mother that he was sought by the police; providing appellant’s description to officers in the vicinities of appellant’s apartment and the scene of the crime; and, placing appellant’s description over the police teletype and radio. In light of these attempts, we cannot agree with appellant’s contention that the police’s failure to make additional efforts-including visits to appellant’s apartment on November 15 and 16-demonstrates a lack of due diligence. To require the effort proposed by appellant would be to extend the burden of due diligence to unreasonable lengths.

The exclusion of these four days from the 186 day period between the filing of the complaint and commencement of trial thus extended the allowable period of Rule 1100 to Saturday, May 15, 1976. Since trial commenced the following Monday, May 17, 1976, the Rule was not violated. Commonwealth v. Jones, 473 Pa. 211, 373 A.2d 1338 (1977).

In reviewing a claim of ineffective assistance of counsel, we are bound to determine whether a particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Since it is only in those circumstances where the claim foregone was of arguable merit that we must inquire into the basis for counsel’s decision not to pursue the matter. Accordingly, the initial consideration in applying such a standard is whether there existed a reasonable basis for not pursuing the claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Instantly, since we find no violation of Rule 1100, trial counsel cannot be deemed ineffective for his failure to petition to dismiss.

Judgment of sentence affirmed.

EAGEN, J., files a dissenting opinion.

1 . November 13, 1976 is not to be included in the calculation of the Rule 1100 time period since it was the date on which the complaint was filed. 1 Pa.C.S.A. Section 1908. Instead, November 14, 1976-approximately 3:00 a. m. thereon, to be precise-represents completion of the first day for Rule 1100 purposes. Thus, although appellant surrendered on the afternoon of November 16, 1975, we agree with the lower court’s determination that Mott was unavailable for three days.