No. 617 Pittsburgh, 1981, Appeal from judgment of sentence dated June 4, 1981, Court of Common Pleas, Criminal Division, Butler County at No. 580 of 1980.
Sallie Ann Radick, Pittsburgh, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Beck, Johnson and Popovich, JJ.
[ 298 Pa. Super. Page 443]
Appellant was convicted of driving under influence of alcohol or controlled substance*fn1 by a jury and at the same proceeding, convicted of accidents involving damages to unattended vehicle or property*fn2 by the judge as fact finder. He was sentenced for the conviction on driving under the influence to pay a fine of five hundred dollars, one year probation and required to attend the Butler Alcohol Countermeasure Program. On the damages to the unattended vehicle or property conviction he was sentenced to pay a fine of twenty-five dollars and assessed four points.
Five issues are raised by Appellant, of which only the first need be addressed because of our determination to reverse the convictions and dismiss Appellant.
[ 298 Pa. Super. Page 444]
The initial determination is whether the lower court erred in failing to grant Appellant's motion for dismissal under Pa.R.Crim.P., Rule 1100 (Rule 1100).
A complaint was filed against Appellant on August 27, 1980, making the run date February 27, 1981. He purportedly made a general waiver of the 180 day rule on October 15, 1980, in order to be considered for the Accelerated Rehabilitative Disposition (A.R.D.) program.*fn3 The A.R.D. application was refused on December 8, 1980 and Appellant was arraigned on January 5, 1981, with trial set for March 17, 1981. On March 23, 1981, Appellant's Motion to Dismiss under Rule 1100 was refused and trial commenced. Appellant was found guilty of both counts on that same day. At no time did the Commonwealth seek an extension as per Rule 1100(c).
Appellant argues that because no extension was granted and because Appellant's purported waiver was invalid, he was not tried within the time prescribed by Rule 1100.
If the defendant is brought to trial more than 180 days after filing of a written complaint, the burden rests on the Commonwealth to prove that the time beyond the 180 day period was properly excluded from the run period by the timely filing of a petition to extend or by any other exclusionary provision of Rule 1100. Commonwealth v. Goldwire, 279 Pa. Super. 451, 421 A.2d 286 (1980).
The Commonwealth counters that (1) the waiver was valid, (2) trial could not have been scheduled for the January term because that time period was within the 30 day period designated for discovery and pre-trial motions and (3) ...