No. 73 Harrisburg, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, York County, No. 726 CA 1979.
John Thompson, York, for appellant.
William H. Poole, Jr., Assistant District Attorney, York, for Commonwealth, appellee.
Wickersham, Wieand and Montemuro, JJ. Wickersham, J., files dissenting opinion.
[ 303 Pa. Super. Page 274]
Appellant was found guilty by a jury of driving while under the influence of alcohol. Post-trial motions were denied and appellant was sentenced to a term of one (1) to twelve (12) months imprisonment. Additionally, appellant was fined two-hundred and fifty ($250.00) dollars plus costs. This direct appeal followed.
Appellant raises several contentions for our review, including inter alia, that he was denied his right to a speedy trial pursuant to Pa.R.Crim.P. 1100. We agree and accordingly reverse.
The procedural disposition of the case below involved the following facts:
On June 13, 1979, a written complaint was filed charging appellant with driving while under the influence of alcohol. Appellant appeared before a district magistrate on June 25, 1979 where he, without benefit of counsel, waived his right to a preliminary hearing. On June 26, 1979, appellant's counsel sent a letter to the district attorney's office requesting the case to either be remanded for a preliminary hearing or reconsideration be given concerning appellant's eligibility for ARD.*fn1 There was no further development until July 20, 1979, when the case was returned to the magistrate for a preliminary hearing. The preliminary hearing was originally scheduled for August 29, 1979, but was continued to September 11, 1979, at defense counsel's request. Subsequently, at the preliminary hearing, the Commonwealth established a prima facie case and the matter was returned to the district attorney's office on September 14, 1979. In
[ 303 Pa. Super. Page 275]
light of the fact that appellant had not been arraigned at this point in time, and would not be arraigned until December 3, 1979, the Commonwealth, on November 26, 1979, filed a petition to extend under Pa.R.Crim.P. 1100(c). After a hearing on the matter, the lower court granted the Commonwealth's petition, and extended the trial run date to the January Term of court, beginning on January 14, 1980. Appellant was eventually tried and convicted on January 14, 1980.
The original run date under Rule 1100 in this case would have been December 10, 1979. The Commonwealth in its petition to extend, stated that it could not bring appellant to trial as required by Rule 1100, specifically alleging that:
The Commonwealth further alleged that it had exercised due diligence in attempting to bring the case to trial within the appropriate time period but failed to do so because of the facts set forth above.
The lower court granted the Commonwealth's petition to extend on the basis that the appellant's request of June 26, 1979 to return the case for a preliminary hearing constituted a request for a continuance and that all time in excess of ...