William D. Parry, Philadelphia, for appellant.
Donald L. Reihart, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., York, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, concurs in the result.
[ 243 Pa. Super. Page 505]
Appellant contends that the Commonwealth violated Rule 1100(c), Pa.R.Crim.P., 19 P.S. Appendix, by not petitioning for an order extending the time for commencement of trial before the expiration of the 180 day period mandated by Rule 1100(a)(2). We agree and, therefore, order that appellant be discharged.
On August 12, 1975, York County officials filed a written complaint charging appellant with burglary,*fn1 theft,*fn2 and receiving stolen property.*fn3 Appellant was arrested the same day. A preliminary hearing was scheduled for August 21, 1975, but appellant requested and received a continuance of 18 days. On September 8, 1975, appellant was bound over for the Grand Jury. On September 11, 1975, appellant failed to post bond and was
[ 243 Pa. Super. Page 506]
consequently incarcerated in the York County Prison. He remained there until April 7, 1976, except for certain periods of time when he was temporarily transferred to Delaware County Prison, where he was held on a writ of detainer from York County. On December 9, 1975, appellant failed to appear at his arraignment. Appellant contends that his attorney*fn4 told the District Attorney on December 2, 1975, that appellant was being held at Delaware County Prison and that the District Attorney would have to make arrangements to bring appellant back to York County in time for the December 9 arraignment.*fn5 The Commonwealth insists that it did not know whether appellant had retained counsel and, therefore, did not transfer appellant from the Delaware County Prison because the local rules of court demand that a defendant be represented by counsel at his arraignment. On December 16, York County officials transported appellant back to York County; they presented appellant for arraignment the next day. However, the District Attorney claimed that the eight day delay in arraignment proceedings made it impossible to put the case on the January, 1976 trial list.
On February 19, 1976, appellant filed an application for dismissal of the charges with prejudice pursuant to Rule 1100(f). He alleged that 191 days had elapsed since the filing of the written complaint. The lower court denied appellant's application to dismiss and directed the Commonwealth to file an application to extend the time for commencement of trial pursuant to Rule 1100(c). The court then granted the Commonwealth's application in advance of the actual filing. On February
[ 243 Pa. Super. Page 50720]
, 1976, the Commonwealth filed its application to extend.
Appellant was tried before a jury on February 26, 1976. The next day, the jury acquitted appellant of all charges except receiving stolen property. Appellant filed a post-trial motion claiming a violation of Rule 1100. The lower court denied this motion and sentenced appellant to a three-to-six year term of imprisonment. This appeal followed.
Rule 1100(a)(2) states, "[t]rial in a court case in which 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." The complaint in the instant case was filed on August 12, 1975. The 180th day from this date was February 8, 1976. Trial did not commence until February 26, 1976. Accordingly, the Commonwealth violated Rule 1100 and appellant must be discharged unless the Commonwealth can ...