No. 1775 Philadelphia, 1980, Appeal from the Order of July 21, 1980, Court of Common Pleas, Criminal Division, Chester County, Pennsylvania, No. 1128 of 1976.
Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellant.
Alan Lourie, Assistant Public Defender, West Chester, for appellee.
Spaeth, Johnson and Wieand, JJ. Wieand, J., concurs in the result.
[ 293 Pa. Super. Page 156]
The Commonwealth appeals from the order of July 21, 1980, which both granted Appellee's motion in arrest of judgment and dismissed the charges and discharged Appellee. The basis for the discharge was the violation of Appellee's Rule 1100 rights. For the following reasons, we reverse.
The complaint against Appellee was filed on July 21, 1976; so the run date was January 17, 1977. After a preliminary hearing on August 8, 1976, Appellee was held for trial. When the case was called for trial on December 6, 1976, Appellee, after a complete colloquy, entered a guilty plea that was accepted by the court. The judge deferred sentencing pending a presentence investigation.
When Appellee appeared for sentencing on April 14, 1977, he denied one count to which he had previously pled guilty. The judge, therefore, refused to impose sentence and continued the proceedings. On July 25, 1977, the Commonwealth filed a petition for an extension under Rule 1100(c).*fn1 On August 24, 1977, Appellee withdrew his guilty pleas and waived his Rule 1100 rights subsequent to August 24, 1977. On August 31, 1977, after a hearing on the Commonwealth's
[ 293 Pa. Super. Page 157]
Rule 1100(c) petition, the court extended the run date to December 30, 1977.
On December 8, 1977, Appellee filed an Application to Dismiss; and the court conducted a hearing on said application prior to the commencement of the non-jury trial. The court dismissed Appellee's application and proceeded with the non-jury trial. Appellee was found guilty of Simple Assault,*fn2 Recklessly Endangering Another Person,*fn3 two counts of Arson and Related Offenses,*fn4 and Driving under Influence of Alcohol or Controlled Substance.*fn5 On October 21, 1980, the court granted Appellee's motion in arrest of judgment and discharged Appellee.
In its appeal from the aforesaid order, the Commonwealth raises two issues. First, does trial commence under Rule 1100 when the defendant enters a guilty plea and the court, after conducting a colloquy, accepts the plea and orders a presentence investigation? Second, does the Commonwealth have 120 days to bring the defendant to trial where the lower court grants the defendant's motion to withdraw his guilty pleas which had previously been accepted by the court?
The first issue is answered by Commonwealth v. Juliano, 282 Pa. Super.Ct. 226, 422 A.2d 1088 (1980), petition for allowance of appeal denied (1981). In Juliano, the defendant filed a PCHA Petition, alleging that his Rule 1100 rights had been violated. As in the instant case, the lower court in Juliano accepted the defendant's guilty plea but deferred sentencing pending a presentence report. The Superior Court stated that ...