No. 16 October Term, 1979, Appeal from the Order of Milton O. Moss, J., on November 30, 1978, in the Court of Common Pleas, Criminal Division, Montgomery County, Pennsylvania, at No. 1803--78
John J. Burfete, Jr., Assistant District Attorney, Norristown, for Commonwealth, appellant.
Arthur J. King, Assistant Public Defender, Norristown, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 274 Pa. Super. Page 332]
The Commonwealth has appealed an Order of the lower court dismissing an application to extend the time for trial filed pursuant to Pa.R.Crim.P. 1100(c) ("Rule 1100"), and at the same time granting Appellee's application to dismiss the charges then pending against him. The lower court found the application to extend to be untimely.
[ 274 Pa. Super. Page 333]
From the record we observe that a criminal complaint was filed against Appellee on May 4, 1978, charging him with burglary, theft and related offenses. Accordingly, the Commonwealth was required to bring Appellee to trial not later than October 31, 1978. Rule 1100(a)(2);*fn1 Commonwealth v. Ehredt, 485 Pa. 191, 193-194 n.3, 401 A.2d 358, 360 n.3 (1979).
Appellee was arrested pursuant to the criminal complaint on May 4, 1978, by police of the Borough of Pottstown and was thereupon released by the police to federal authorities for a federal probation violation and incarcerated in a federal institution.
Appellee was scheduled to be arraigned upon the instant charges on June 20, 1978, but by reason of his incarceration, failed to appear. Apparently unaware that Appellee was in federal custody, on June 24, 1978, the Commonwealth filed an application to extend the time for trial, asserting Appellee's failure to appear for arraignment as the basis for its request, and at the conclusion of an ex parte proceeding*fn2 on June 29, 1978, the court entered an Order granting the Commonwealth's application to extend in the following language:
". . . trial is to be held no later than 120 days from the date the defendant is apprehended on a bench warrant . . ."
On June 29, 1978, five days thereafter, the Commonwealth sought and obtained a bench warrant for Appellee's arrest for the failure to appear at arraignment. On August 3, 1978, Appellee appeared in court and the bench warrant was ...