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., files an opinion in support of affirmance in which Jacobs, President Judge, and Van der Voort, J., join. Hoffman and Cercone, JJ., dissent. Spaeth, J., dissents. Commonwealth v. Braithwaite,
Author: Per Curiam
[ 255 Pa. Super. Page 79]
The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
On September 18, 1975, appellant was arrested when he was discovered removing a radiator from an unoccupied structure, owned by the Department of Housing and Urban
[ 255 Pa. Super. Page 80]
Development, at 925 W. Seltzer Street, Philadelphia. At his preliminary arraignment on that same date, a complaint was filed charging appellant with burglary,*fn1 attempted burglary,*fn2 theft,*fn3 and conspiracy.*fn4 A preliminary hearing, scheduled for September 24, 1975, was continued because the arresting officer was unavailable. On October 29, 1975, appellant was dismissed and the pending charges were dropped.
A second complaint, charging the same offenses, was filed on December 30, 1975. A trial date was ultimately set for April 19, 1976. On that day, the Commonwealth was prepared for trial, but appellant's counsel appeared and requested a continuance so that a motion to dismiss for failure to comply with Pa.R.Crim.P. 1100(a)(2)*fn5 could be prepared. The motion to dismiss, filed on May 27, 1976, was denied on June 1. Appellant was found guilty after a non-jury trial of theft by unlawful taking. Oral post-verdict motions were denied, and appellant was sentenced to serve two years probation and to pay $200.00 restitution.
Considering appellant's Rule 1100 assertion in post-trial motions,*fn6 Judge Klein found that the 180 day period began to run from the filing of the second complaint on December 30, 1975. However, Judge Klein ruled that the 180 day interval should be shortened by 41 days, the period of time during which charges were pending against appellant under
[ 255 Pa. Super. Page 81]
the first complaint.*fn7 Thus, under this reasoning, the Commonwealth had until May 17, 1976, to bring appellant to trial, well after appellant's requested continuance to file a ...