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COMMONWEALTH PENNSYLVANIA v. MICHAEL LODISE (03/28/80)

filed: March 28, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL LODISE



NOS. 692, 693, 1141 OCTOBER TERM, 1978 Appeal from the Orders of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Nos. 77-04-0890; 78-00-0343, 78-00-374.

COUNSEL

Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Taras Wochok, Media, for appellee.

Price, Wieand and Van der Voort, JJ.*fn*

Author: Van Der Voort

[ 276 Pa. Super. Page 486]

Defendant was arrested originally on April 6, 1977 and charged with various kinds of theft in March of 1977 of more than $10,000 from his employer Stouffer's of Philadelphia. He was held for trial, but the original transcript was quashed on motion of defendant by Judge Blake of the Philadelphia court on the ground that there was no evidence presented at the preliminary hearing to establish that a theft occurred on the date alleged in the complaint. The Commonwealth's motion at the preliminary hearing to amend the complaint to conform to the proof was refused by the hearing judge.

Defendant was again arrested on November 14, 1977, on the original charges of theft, theft by deception, and failure to make required disposition of funds.

At a second preliminary hearing, before Judge Mirarchi on December 14, 1977, defendant was again discharged. On January 12, 1978, the Commonwealth filed a petition to re-arrest defendant, and Judge Mirarchi denied the petition. The Commonwealth appealed to this Court.

[ 276 Pa. Super. Page 487]

On January 12, 1978, anticipating a delay in the handling of the appeal, the Commonwealth filed a petition for an extension of time under Rule 1100(c). This petition was denied on January 27, 1978. The Commonwealth filed a petition for reconsideration on February 21, 1978, which was denied on March 16, 1978 by Judge Blake.

There are two principal matters to be considered on this appeal; specifically, whether the discharge of defendant by Judge Mirarchi on December 14, 1977 should be reversed, and second, whether prosecution of this defendant is barred by Rule 1100.

We address the second matter first. Defendant argues that the 180 day time limitation of Rule 1100 starts to run on April 6, 1977, in which case prosecution would be barred by the expiration of the 180 days in early October 1977.

We disagree. In the circumstances present in this case, we hold that the applicable 180 days began to run on November 14, 1977, the ...


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