No. 319 March Term, 1977, Appeal from the judgment of sentence in the Court of Common Pleas, Criminal Division, of the County of York, Pennsylvania at No. 22 June Sessions, 1976.
Robert Bruce Evanick, Assistant Public Defender, York, for appellant.
Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hector, JJ.
[ 257 Pa. Super. Page 511]
This is an appeal from the judgment of sentence of the Court of Common Pleas of York County, Criminal Division, by the defendant-appellant, James Delauter, after conviction of attempted robbery; and the denial of post-trial motions.
The complaint was filed against the defendant on December 1, 1975 and the period of 180 days would have expired on May 28, 1976. On March 19, 1976 the defendant filed a pre-trial application to remand the case for a preliminary hearing at which the defendant would be represented by counsel. On the same date the order of remand was made, the Commonwealth returned the record to the District Justice for a preliminary hearing. A preliminary hearing was held May 6, 1976 and the record was returned on May 11, 1976.
The Commonwealth filed an application for an extension on June 2, 1976. A hearing was fixed on the application for June 24, 1976. On June 18, 1976, the defendant filed an application to dismiss the charges for violation of Pa.Rules of Criminal Procedure 1100.
On June 24, 1976 the court entered an order on the Commonwealth's application extending the time for trial on or before July 2, 1976. On that date, the Commonwealth filed another application to extend the time of trial. At the hearing held on July 16, 1976, both the Commonwealth's application to extend and defendant's application to dismiss were considered. The Commonwealth's application was granted and the defendant's application refused. Trial was held on July 26, 1976.
The narrow issue presented is whether the first application for extension on the 185th day was timely filed within the rule. In Commonwealth v. Millhouse, 239 Pa. Super. 445, 362 A.2d 398 (1976) this Court held that:
[ 257 Pa. Super. Page 512]
"There are two pitfalls in the Commonwealth's reasoning '(1). Rule 1100 does not exempt pre-trial motions (other than a motion for a continuance) from the relevant time period. Thus, a request for discovery does not total the allotted time period under the rule . . . the rule, however, does provide that in such instances the Commonwealth must make a ...