NO. 1891 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas of Lebanon County, Criminal at No. 130, 1977.
William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
Keith L. Kilgore, Lebanon, for appellee.
McEwen, Montemuro and Shertz,*fn* JJ. Montemuro, J., files a dissenting opinion.
[ 296 Pa. Super. Page 273]
The Commonwealth appeals from an Order of the court below discharging appellee by virtue of Pa.R.Crim.P. 1100, following his conviction for receiving stolen property.*fn1 For the reasons which follow, we reverse.
A criminal complaint was filed against appellee on January 20, 1977 establishing an initial Rule 1100 rundate of July 18, 1977. On May 3, 1977, appellee executed a written waiver of his Rule 1100 rights and on June 27, 1977 appellee requested a continuance of the pretrial hearing on his application to suppress evidence. The trial court granted the request and rescheduled the hearing to July 25, 1977, seven days after the initial Rule 1100 rundate. The court rescheduled the pretrial hearing a second time and it was finally held on August 12, 1977. On or about that date, the court further granted appellee's request and continued the case until September 6, 1977 and directed the District Attorney to list the case for trial during the September Term of Criminal Court. On September 16, 1977, ten days past the continuance date set by the trial judge, the Commonwealth filed a petition to extend the time for commencement of trial, to which appellee filed an opposing answer. After a hearing on October 31, 1977, the trial court dismissed the petition as being premature on the basis of "stipulations and statements between and by counsel."
[ 296 Pa. Super. Page 274]
The case proceeded to trial on November 7, 1977 and ended in a mistrial on November 10, 1977. On November 17, 1977 the Commonwealth again filed a petition to extend. Appellee opposed the extension and filed, for the first time, a motion to dismiss under Rule 1100. Following a hearing, the motion was denied. A second trial commenced on January 3, 1978 and appellee was found guilty of receiving stolen property. Appellee then filed post-trial motions arguing, inter alia, that he was denied his right to a speedy trial. The lower court agreed with this claim and ordered appellee discharged. This appeal by the Commonwealth followed.
The initial argument presented by the Commonwealth is that appellee waived his Rule 1100 rights by failing to file a motion to dismiss prior to the commencement of the initial trial. We agree.
It is well established that a defendant waives his Rule 1100 rights by failing to file a motion to dismiss prior to the commencement of trial. Commonwealth v. McCloud, 487 Pa. 191, 409 A.2d 29 (1979); Commonwealth v. Baines, 480 Pa. 26, 389 A.2d 68 (1978); See Commonwealth v. Chase, 494 Pa. Super.Ct. 212, 431 A.2d 224 (1981).
Following the grant of a new trial, a defendant's rights to a speedy trial are prescribed by Rule 1100(e).*fn2 A trial following a mistrial is treated as a new trial granted by the trial court. Hence Rule 1100(e)(1) is applicable here. See Commonwealth v. Legree, 256 Pa. Super.Ct. 128, 389 A.2d 634 (1978); Commonwealth v. Bytheway, 290 Pa. Super.Ct. 148, 434 A.2d 173 ...