No. 1958 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Phila. County, Criminal Div. at No. 90 May Sessions, 1976.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, appellant.
Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Watkins, J., files a dissenting opinion.
[ 285 Pa. Super. Page 143]
This is an appeal from judgments of sentence of three and one-half to seven years in prison for unauthorized use of a credit card, and, to be served consecutively, six months to one year for theft by unlawful taking and receiving stolen property. Appellant was also convicted of forgery, but sentence was suspended on that conviction. We hold that a remand is necessary to determine whether appellant was tried within the period required by Pa.R.Crim.P. 1100. We further hold that if he was so tried, the evidence on the charge of unauthorized use of a credit card was sufficient to prove only a summary offense.
The Commonwealth concedes that the lower court improperly charged appellant with forty-four days, during which appellant was incarcerated awaiting trial, Brief for Commonwealth at 4-5; see also Commonwealth v. Cohen & Holmes, 481 Pa. 349, 392 A.2d 1327 (1978), and that under Rule 1100, appellant should have been tried by November 26, 1976. On November 18, 1976, the case was continued to December 13, 1976. The Commonwealth says that when this occurred, appellant "failed to object to that date," Commonwealth Brief at 5, and thereby waived his rights under Rule
[ 285 Pa. Super. Page 1441100]
, id. However, no transcript of any hearing or other proceeding on November 18 can be found in the record transmitted to us.*fn1 We must therefore remand the case to the lower court so that it may determine what in fact happened, and whether what happened constituted a waiver.
At the trial the Commonwealth proved that appellant had rented a Chevrolet Nova with a stolen credit card in violation of 18 Pa.C.S.A. § 4106. The gradation of this offense is as follows:
An offense under this section falls within the following classifications depending on the value of the property or service secured or sought to ...