Nos. 98 & 186 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia, Criminal Trial Division at Nos. 806 and 808 November Sessions, 1975.
Charles Lowenthal, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion.
A jury found appellant Robert Polsky guilty of murder of the third degree and possession of an instrument of crime. The Court of Common Pleas of Philadelphia denied appellant's written post-verdict motions and sentenced appellant. On these appeals, appellant renews his claim under Pa.R.Crim.Proc.
(a)(2) that charges against him should have been dismissed with prejudice. Factual issues necessary to resolution of appellant's claim have not been resolved. We therefore remand the proceedings for a new hearing.*fn1
On August 7, 1975, a complaint charging appellant with criminal homicide and several weapons offenses was filed and an arrest warrant issued. Later the same day federal agents located appellant in North Carolina and arrested him on charges of violating interstate fugitive laws. Federal charges were nol prossed, but appellant remained in custody in North Carolina. The record does not establish when Philadelphia police learned of appellant's location, what effort was made to secure appellant's return to Pennsylvania, or if and when appellant opposed his return. It establishes only that on October 13, sixty-seven days after the complaint was filed, appellant signed a form stating he waived extradition, on October 16 Philadelphia police went to North Carolina and arrested him, and on October 17 Philadelphia police returned appellant to Philadelphia for preliminary arraignment.
Appellant was not brought to trial until April 9, 1976, 246 days after the complaint was filed. At no time has the Commonwealth sought an extension of time pursuant to Rule 1100(c). On April 1, 1976, appellant moved under Rule 1100(a)(2) to dismiss all charges with prejudice. Rule 1100(a)(2) directs that "[t]rial in a court case in which a written complaint is filed against the defendant after June
, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." Appellant claimed the mandatory 180 day period under Rule 1100(a)(2) began to run on August 7, 1975, the date the complaint was filed, and expired February 3, 1976. In the view of the Commonwealth, the mandatory period began October 17, 1975, the date of appellant's preliminary arraignment in Philadelphia, and did not expire until April 13, 1976. Alternatively, the Commonwealth claimed appellant opposed extradition from August ...