NO. 1225 OCTOBER TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County at No. 993 August 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. Price, J., dissents.
[ 252 Pa. Super. Page 389]
The appellant, Sebron Dandy, Jr., files the instant direct appeal following trial, denial of post-trial motions, and sentencing on a theft charge. He raises several claims of error on appeal, including an argument that Rule 1100 of the Rules of Criminal Procedure,*fn1 concerning prompt trial was violated in this case. We are constrained to agree.
The record shows that appellant was arrested and charges filed on June 3, 1975. On June 9, 1975, he was afforded a preliminary hearing. On June 16, 1975, the appellant filed a motion to quash the magistrate's return and requested that presentment of his case to the grand jury be stayed pending a determination on his motion. On July 22, 1975, the motion to quash was denied. Trial was scheduled for October 16, 1975, but for some reason not readily apparent on the record, was not held. It was scheduled again for November 20, 1975, but was "not reached with both sides ready." The trial was again rescheduled, this time to January 8, 1976. Trial actually commenced on that date, a period of 219 days
[ 252 Pa. Super. Page 390]
after June 3, 1975, the date on which the complaint was filed.
Rule 1100 required that the trial in this case commence within 180 days of the date on which the complaint was filed, or by December 1, 1975. Just prior to trial on January 8, 1976, the appellant's counsel requested a continuance so that he could file a formal motion to dismiss the indictments. While appellant admits that he did not file a written Rule 1100 motion, he claims that he relied upon a then effective Philadelphia Common Pleas Court Rule, Bulletin No. 75-295, which had been issued by the Court Administrator for the Court of Common Pleas of Philadelphia County, which provided, inter alia :
C. When the defendant presents an oral motion for dismissal under Rule 1100 at time of trial, the procedure will be as follows:
1. Defendant is to be given a regular continuance date for trial.
2. He is to be instructed to file the written petition for dismissal under ...