Appeal from the Order dated April 12, 1976, of the Court of Common Pleas, Criminal Division, of Lycoming County, at No. 75-11,290. No. 1547 October Term, 1976.
Robert F. Banks, First Assistant District Attorney, Greenville, with him Allen E. Ertel, District Attorney, Williamsport, for appellant.
Albert C. DeCosey, Jr., submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., concurs in the result.
[ 246 Pa. Super. Page 414]
This is an appeal from the order of the court below quashing the information and discharging defendant, Albert DeCosey, for the reasons hereinafter set forth. We reverse.
A warrant for defendant's arrest was issued on June 11, 1975, following an investigation conducted by undercover agents of the Pennsylvania Bureau of Drug Control. All attempts to locate defendant were unsuccessful, and defendant was neither served with the warrant nor arrested. However, on September 9, 1975, he appeared with counsel at the district justice's office. Defendant was arraigned and he posted bail; a preliminary hearing was set by the district justice for September 23, 1975. Defendant appeared at this preliminary hearing, but requested a continuance in order to retain the services of an attorney. After several delays, a preliminary hearing was finally held on December 30, 1975. Prior to this
[ 246 Pa. Super. Page 415]
hearing, defendant moved to dismiss the action since the preliminary hearing was not initially scheduled within three to ten days from the date of his arraignment. This motion, however, was denied. At the conclusion of the testimony, it was held that a prima facie case had been established, and defendant was bound over for court. Defendant thereafter filed an application to quash the information on January 6, 1976. Concluding that the clear directive of Rule 140(f)(1) of the Rules of Criminal Procedure had not been followed, President Judge GREEVY entered an order on April 12, 1976, quashing the information and discharging defendant. The Commonwealth's appeal from that order followed.
Rule 140 of the Pennsylvania Rules of Criminal Procedure reads in pertinent part as follows:
"(f) When a preliminary hearing is not waived, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth . . ."
It is obvious that Rule 140(f)(1) was not complied with in the instant case; the sole question for our consideration is whether ...