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COMMONWEALTH PENNSYLVANIA v. ALLEN COHEN AND GEORGE HOLMES (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN COHEN AND GEORGE HOLMES, APPELLEES



No. 239 January Term, 1977, Appeal from the Order of the Superior Court at No. 347 October Term, 1976 affirming the Order of the Court of Common Pleas, Criminal Division of Bucks County, Nos. 1437, 1438/1975 Sessions Dismissing the Commonwealth's Petition to Extend pursuant to Pa. R. Crim. P. 1100.

COUNSEL

Kenneth G. Biehn, Dist. Atty., Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellant.

Robert T. Burke, Bristol, for appellee, Allen Cohen.

Michael A. Klimpl, Richard S. Wasserbly, Asst. Public Defenders, Doylestown, for appellee, George Holmes.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Larsen, J., concurs in the result.

Author: Nix

[ 481 Pa. Page 351]

OPINION OF THE COURT

This is an appeal by the Commonwealth from a Superior Court order affirming per curiam the dismissal of the charges lodged against appellees under Pa.R.Crim.P. 1100. On April 1, 1975, criminal complaints were filed against George Holmes and Allen Cohen charging them with impersonating a public servant, conspiracy and harassment. After several continuances a preliminary hearing was held on May 21, 1975 and appellees were held for action of the grand

[ 481 Pa. Page 352]

    jury. On June 26, 1975 appellees were indicted by the grand jury. On that same day appellees failed to appear for arraignment and a bench warrant was issued by the court for the arrest of appellees as authorized by Pa.R.Crim.P. 4016(A)(2). On July 16, 1975 appellees appeared in court, were purged of the contempt, arraigned and released pending trial.*fn1 There were several continuances thereafter at the request of appellees and the Commonwealth for various reasons. On October 10, 1975 the Commonwealth filed a Petition for Extension of Time under section (c) of Rule 1100. This petition was filed 192 days after the filing of the complaints. The trial court ruled that the Petition for Extension of Time was not filed within 180 days and was therefore not timely and for that reason denied it and dismissed the charges against appellees.

Section (c) of Rule 1100 permits the attorney for the Commonwealth to apply to the court for an order extending the time for commencement of trial provided that the application is made prior to the extension of the period in which trial is required to begin.*fn2 We have interpreted this section as requiring the application to be filed within the statutory period, which in this case was 180 days, excluding only those periods allowed under section (d) of the Rule.*fn3 Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

[ 481 Pa. Page 353]

"The Commonwealth may not seek an extension pursuant to section (c) of the Rule nunc pro tunc, that is, the application for an extension must be filed prior to the expiration of the mandatory period set forth in the Rule or set forth in a previous order granting an extension. Commonwealth v. O'Shea, supra [465 Pa.] at 498, 350 A.2d [872] at 875 n. 9; Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). Whether or not an application for an extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to section (d) of the Rule. If the time so computed exceeds the mandatory period of the Rule or, in cases where an extension or extensions ...


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