No. 2345 October Term, 1977, Appeal from the Order in the Court of Common Pleas of Montgomery County, Nos. 4161, 4161.1, 4161.2, 4161.3, and 4161.4 - 1976.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellant.
Charles S. Lieberman, Philadelphia, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, and Hoffman, J., dissent. Jacobs, former President Judge, and Spaeth, J., did not participate in the consideration or decision of this case.
[ 272 Pa. Super. Page 237]
This case arises from the order of the court of common pleas granting appellee's motion to dismiss due to a violation of Pa.R.Crim.P. 1100.*fn1 For the reasons stated herein, we reverse that order and remand for trial.
[ 272 Pa. Super. Page 238]
The facts pertinent to our decision are as follows. A criminal complaint was filed against appellee on October 1, 1976, charging him with recklessly endangering another person,*fn2 terroristic threats,*fn3 possessing instruments of crime,*fn4 firearm violation,*fn5 and assault.*fn6 The initial run date for Rule 1100 purposes was thus March 30, 1977. Trial was first scheduled for January 25, 1977, but on that date, appellee requested by written application a continuance due to the unavailability of his trial counsel. That application signed by appellee, contained the following language:
[EDIT ] IS OVERSTRUCK IN THE SOURCE.]
"I have been advised and I am aware of the implications and consequences of the above application and I ([O>have
Pursuant to the request, the trial court ordered the case passed to February 8, 1977. On that date, the case was not reached due to the prosecutor's personal backlog. On March 18, 1977, appellee requested another continuance owing to counsel's involvement with other matters. Although this application was delivered to the court with the suggested order "Passed to April 13, 1977", agreed to by both parties, the order was never signed by a judge. On April 13, 1977, the Commonwealth requested a continuance for the purpose of considering appellee for A.R.D. eligibility. This request, together with an order to re-activate the case for trial on May 16, 1977, with trial to be scheduled no later than 120 days from the date of the order, was again not signed by a judge. On June 7, 1977, appellee requested, and the Commonwealth
[ 272 Pa. Super. Page 239]
did not oppose, a continuance due to his need for a knee operation. No action was taken on this application until July 12, 1977, when the court ordered the case re-activated on August 8, 1977, for trial no later than 120 days from the date of the order. On August 8, 1977, the Commonwealth requested, and appellee opposed, a one week continuance caused by the failure of a prosecution witness to appear. The application was approved and the court ordered the case to be relisted for trial on August 15, 1977. On that date, appellee's application to dismiss filed pursuant ...