No. 2055 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment Nos. 1687-88, September Session, 1977.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 292 Pa. Super. Page 102]
This matter is an appeal from the judgment of sentence entered by The Court of Common Pleas of Philadelphia County against the appellant, Lawrence Fanelli, following his conviction for unauthorized use of an automobile.*fn1 The appellant contends, inter alia, that the lower court erred in denying his motion to dismiss under Pa.R.Crim.P. 1100(f) where he asserts, the Commonwealth failed to exercise due diligence in bringing him to trial within 180 days after the criminal complaint was filed as mandated by Pa.R.Crim.P. 1100(a)(2).*fn2 The Court agrees and, therefore, vacates the judgment of sentence and discharges the appellant.
The appellant was arrested on September 5, 1977, and charged with receiving stolen property and unauthorized use of an automobile. The same day, the criminal complaint in this matter was filed. Hence, the Commonwealth had until March 6, 1978 to bring the appellant to trial.
At the appellant's preliminary arraignment, bail was set at $2500.00. The appellant was unable to post bond.
[ 292 Pa. Super. Page 103]
A preliminary hearing was held on September 29, 1977. As a result of that hearing, the appellant was ordered held for trial.
On October 20, 1977, the appellant filed a motion to quash the return of the magistrate's transcript on the basis that the Commonwealth had failed to establish a prima facie case of the appellant's guilt at the preliminary hearing.*fn3 The lower court granted the motion to quash and discharged the appellant on November 14, 1977.
On December 14, 1977, the Commonwealth filed a petition for reconsideration of the order granting the appellant's motion to quash. The same day and without a hearing, the lower court vacated its order granting the appellant's motion to quash pending reconsideration and entered a Rule on the appellant to show cause why the order granting his motion to quash should not be reversed.*fn4
The appellant was never notified of the Commonwealth's request for reconsideration or the decision of the lower court to vacate its order granting the appellant's motion to quash pending reconsideration. The appellant's attorney, a public defender, was notified of the lower court's decision to vacate pending reconsideration and, as a result, the public defender filed an answer on ...