No. 2247 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section as of No. 21 November Session, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
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Appellant appeals from his conviction of burglary alleging that the trial court erred in denying his motion to dismiss the indictment because Pa.R.Crim.P. 1100 had been violated. We agree and, therefore reverse appellant's conviction and order that he be discharged.
On October 8, 1975, a complaint was filed against appellant charging him with burglary, theft, and receiving stolen property. Pa.R.Crim.P. 1100(a)(2) requires that "[t]rial in a court case in which a written complaint is filed . . . shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." In the present case, 180 days from the filing of the complaint would have been April 6, 1976.
Appellant was indicted on the offenses charged in November, 1975. On January 13, 1976, the lower court granted appellant's application for a drug evaluation as authorized by the Act of April 14, 1972, P.L. 233, No. 64, § 18, as amended by the Act of October 26, 1972, P.L. 1048, No. 263, § 1, 35 P.S. § 780-118. The evaluation period lasted until February 25, 1976, a total of 43 days. Prior to February 25, appellant was taken into federal custody because of a parole
[ 251 Pa. Super. Page 348]
violation and was incarcerated in the county prison. Sometime before April 21 he was transferred to Lewisburg Federal Prison. Appellant's case was called on February 25, but was continued until March 4, 1976, because the District Attorney had not prepared the writ necessary to have appellant removed from federal custody to Philadelphia for trial. The case was continued again on March 4 because it was not reached. Another continuance was granted on April 21 because the District Attorney failed to prepare the writ for appellant's delivery from Lewisburg. On May 25, the lower court denied appellant's motion to dismiss the indictment, ruling that Rule 1100 had not been violated. On the same day, the District Attorney filed a motion to extend the Rule to June 9, 1976. The motion was granted.
On June 9, the case was continued still another time because the District Attorney failed to prepare a writ to bring appellant to Philadelphia. At the request of the District Attorney, the trial court issued a bench warrant to secure appellant's appearance; such warrant was unnecessary. The lower court denied appellant's second motion to dismiss on the basis of Rule 1100 and extended the running of the rule to July 26, 1976. On July 26, 1976, appellant's trial began.
Although Rule 1100 requires trial to commence within 180 days of the filing of the complaint, the time period may be extended under certain circumstances. Rule 1100(d) states
(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of ...