No. 640 April Term, 1977, Appeal from the Sentence imposed by the Honorable Caram J. ABOOD on March 17, 1977, and filed to No. C-378, 1976, of the Criminal Division of the Court of Common Pleas of Cambria County, Pennsylvania.
Stephen L. Dugas, Assistant Public Defender, Ebensburg, for appellant.
D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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This appeal is taken from the judgment of sentence imposed on appellant following his conviction for robbery. The
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sole issue for our determination is whether the court below erred in denying appellant's motion in arrest of judgment based upon an alleged violation of Pa.R.Crim.P. 1100. For the following reasons we hold that it did, and reverse the judgment of sentence and order appellant discharged.
On February 3, 1976, a criminal complaint was filed charging appellant as an accomplice to armed robbery. A not guilty plea was entered, and trial was scheduled for June 15, 1976. At that time, however, the Commonwealth discovered that one of its witnesses was unavailable, and subsequently filed an application for continuance of the case until the August term of criminal court. Following a hearing, the continuance was granted.
On August 11, 1976, one hundred ninety days after filing of the complaint against him, appellant moved to dismiss the charges for violation of Rule 1100. The motion was denied after argument, and the case proceeded to trial. A verdict of guilty was returned by the jury, and appellant was sentenced to a term of four years probation and to pay a $200.00 fine and costs. This appeal followed.
Our analysis must start with the relevant section of Rule 1100. In pertinent part, 1100(c) provides that "[a]t any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial."
At the heart of the dispute before us is the distinction between a continuance and an 1100(c) extension. In Commonwealth v. Kincade, 246 Pa. Super. 389, 371 A.2d 894 (1977), we examined this distinction under similar circumstances, and held that where the Commonwealth only requests a continuance, and no petition for an extension is filed, no extension can be granted under Rule 1100. On the other hand, in Commonwealth v. Kollock, 246 Pa. Super. 16, 369 A.2d 787 (1977), we noted in passing that even though the Commonwealth's petition was captioned "Petition for ...