Commonwealth v. Byrd

PRICE, Judge:

On October 80, 1974, a criminal complaint was filed against the appellant, charging him with robbery, aggravated assault, and other offenses. On September 18, 1975, the appellant was convicted of the charged offenses by a jury. The appellant now claims that he was not afforded a speedy trial under Rule 1100 because he was not brought to trial within 180 days from the date the criminal complaint was lodged against him. See Pa.R.Crim.P. 1100(a)(2).¹ The Commonwealth does not contest that it failed to bring the appellant to trial within the mandatory period, asserting instead that the appellant forfeited his right to a speedy trial under Rule 1100 by failing to comply with the requirements of Rule 1100(f). We agree with the Commonwealth’s contention.

Rule 1100(1') requires an accused to file a petition before trial showing that the mandatory period has expired.² In the instant case, the court below, on August 25, 1975, commenced a hearing on the appellant’s motion to suppress which had previously been reserved for the time of trial. On August 26, during the suppression hearing, the appellant applied to the court below ' for an order dismissing the charges against him, claiming a violation of his Rule 1100 right to a speedy trial. The lower court delayed the suppression hearing to enable the appellant to file the required written application to dismiss, see Rule 1100(f), which was denied on September 2, 1975. The question before us is whether the appellant’s application to dismiss was timely filed under Rule 1100(f).

The Comment to Rule 1100 advises that: “A trial commences when the trial judge determines that the parties are present and directs them to proceed for voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in trial.” (emphasis added) Although the comments to our procedural rules are not binding upon us, they often serve as effective aids in the interpretation of those rules. We find the Comment definition of trial commencement both persuasive and applicable in the instant situation.

By adopting the Comment definition of trial commencement, we seek to establish some degree of uniformity and certainty in Rule 1100 interpretation. The dissent desires us to apply the Comment definition of trial commencement to cases involving subsections (a)(1) and (2) and not to cases involving subsection (f). We believe, however, that to do so would only increase the substantial amount of litigation and confusion already engendered by Rule 1100. Both parties to this appeal were aware of the provisions of the Rule and its Comment. Section (f) of the Rule unambiguously states that an accused may apply to the lower court for an order dismissing the charges only if such application is made prior to the commencement of trial, but after the expiration of the mandatory period. The time of trial commencement is clearly defined in the Comment to the Rule. We hold therefore that an accused forfeits the protection of Rule 1100 if he fails to assert his rights in the timely fashion required by the Rule. See Commonwealth v. Matt, 248 Pa.Super. 538, 375 A.2d 371 (1977). Since trial had already commenced when the appellant filed his petition to dismiss, the court below correctly denied the appellant’s petition as untimely.

Appellant’s counsel on appeal, in anticipation of our decision of the above issue, argues further that if appellant’s trial counsel failed to file appellant’s Rule 1100 motion to dismiss in timely fashion, then appellant’s right to effective assistance of counsel was violated. We are constrained to agree with this argument.

The standard by which we determine a claim of ineffective assistance of counsel was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967): “[O]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Recently, in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), the Pennsylvania Supreme Court delineated the process by which we are to apply this reasonable basis standard, explaining that “[t]he initial factor which must be considered ... is whether the claim which . . . counsel is charged with not pursuing had some reasonable basis.” Id. 472 Pa. at 277,372 A.2d at 695.³

In the instant case, the appellant’s claim that he was not brought to trial within the mandatory period is meritorious. As previously stated, the criminal complaint against the appellant was filed on October 30, 1974. Under Pa.R. Crim.P. 1100(a)(2), the Commonwealth had 180 days or until April 28, 1975, to bring the appellant to trial. Trial, however, did not commence until August 25, 1975, 299 days after the filing of the complaint. All periods of delay beyond the mandatory period, “ ‘. . . must either be excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)], if the Commonwealth is to prevail.’ ” Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O’Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976).

Pa.R.Crim.P. 1100(d) provides that the period for commencement of trial shall be computed by excluding therefrom any delay which results from “(1) the unavailability of the defendant or his attorney; (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.” The record shows that the appellant was responsible for some delay in the court below. The case was continued from January 3, 1975, until January 29, 1975, because appellant’s trial counsel was unavailable. Twenty-six days are thus excludable from the computation of the mandatory period. Pa.R.Crim.P. 1100(d)(1). The appellant was granted another continuance from January 29, 1975, until February 24, 1975, to allow newly appointed counsel to prepare. Since this continuance comprised less than thirty days, no time is excluded from the period. Pa.R.Crim.P. 1100(d)(2). The case was also continued on February 26, 1975, when the appellant was arrested in Philadelphia for murder. No further action was taken on the case until April 1, 1975. Even if we assume that the appellant was unavailable for trial during this period of time⁴ and therefore exclude the entire thirty-four day delay from the prescribed period, it is clear that trial did not commence within the prescribed period. The mandatory period could be extended, at most, sixty days, or until June 27, 1975. Trial, of course, did not commence until August 25, 1975. Furthermore, the Commonwealth failed to file a petition for an extension of time within the prescribed period.⁵

We can perceive no reasonable legal basis for an attorney to fail to object to a violation of his client’s right to speedy trial under Pa.R.Crim.P. 1100. See Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976) (dissenting opinion by Roberts, J.). If appellant’s trial counsel has filed a timely petition to dismiss, the appellant would have been entitled to discharge. Although we are aware that by so finding, the appellant postliminiously regains rights which were previously declared forfeit, we are constrained to conclude that the appellant was deprived of effective assistance of counsel.

The judgment of sentence is reversed, and appellant is ordered discharged.

HOFFMAN, J., files a concurring opinion in which SPAETH, J., joins. VAN der VOORT, J., files a dissenting opinion.

1 . Pa.R.Crim.P. 1100(a)(2) provides that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

2 . Pa.R.Crim.P. 1100(f) provides that: “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.”

3 . Although the lower court did not address the merits of appellant’s Rule 1100 claim, finding that appellant forfeited his ability to assert the claim, the issue itself was raised in post-verdict motions and thereby preserved for appellate review. Cf. Commonwealth v. Hub-hard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975).

4 . The Comment to Pa.R.Crim.P. 1100 states that: “[T]he defendant should be deemed unavailable for any period of time during which . the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other judicial proceedings.” We cannot, however, ascertain from the present record the exact period of time during which the appellant was engaged in other judicial proceedings.

5 . The Commonwealth did file a petition to extend the prescribed period on August 13, 1975, well after the expiration of the prescribed period. This petition was denied by the court below.