No. 307 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Beaver County, Criminal Division, No. 152 of 1977.
Harry E. Knafelc, Assistant Public Defender, Beaver, for appellant.
John Lee Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellee.
Price, Judge. Hester, J., files a dissenting statement in which Van der Voort, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 274 Pa. Super. Page 230]
Following a non-jury trial conducted on June 27, 1977, appellant was found guilty of retail theft.*fn1 Post-verdict motions were denied, and he was sentenced to pay a fine of $1.00 and undergo imprisonment for a period of not less than eleven nor more than twenty-three months. Appellant now makes several allegations of error in the trial court. As we
[ 274 Pa. Super. Page 231]
conclude that appellant must be discharged because of a Rule 1100 violation, we need not address his other contentions.*fn2
Pa.R.Crim.P. 1100(a)(2) provides that:
"Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed."
The sequence of events pertinent to ruling on appellant's claim that the Commonwealth exceeded this maximum period is as follows. On October 23, 1976, a complaint was filed charging appellant with retail theft. He was arrested and arraigned before Magistrate Stephen Mihalic that same day. Appellant was apprised of his rights and released on bail. A preliminary hearing was scheduled for November 3, 1976.
When appellant failed to appear for the November 3rd hearing, bond was forfeited and a warrant issued for his arrest. His whereabouts remained unknown until February 19, 1977, when George Anderson of the Center Township Police Department received information that appellant was in an Allegheny County jail. That same day, Magistrate Hugo Iorfido issued a detainer on appellant. Three days later, Magistrate Mihalic scheduled a preliminary hearing for March 7, 1977. A hearing was held at that time, a prima facie case established, and appellant was bound over for court. On June 8, 1977, appellant filed a motion to quash the information on the basis of a Rule 1100 violation. That motion was denied and appellant, as noted, was brought to trial on June 27, 1977.
The initial run date for Rule 1100 purposes was April 21, 1977. Trial was actually commenced on June 27, 1977. No petition for extension was ever filed. Consequently, unless at least 67 days are excludable from calculation of the run time, appellant must be ...