No. 2637 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Bucks County at No. 1433 of 1978.
Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellant.
Robert Mozenter, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ. Hester, J., files dissenting opinion.
[ 304 Pa. Super. Page 260]
This case involves a Commonwealth appeal from a lower court order discharging appellee, Richard L. Whittall, under Pa.R.Crim.P. 1100. For the following reasons, we reverse and remand.
The relevant facts are as follows: A criminal complaint charging appellee with attempted burglary,*fn1 possessing instruments of crime,*fn2 and criminal conspiracy*fn3 was filed on May 8, 1978. The run date, in accordance with Pa.R.Crim.P.
[ 304 Pa. Super. Page 2611100]
, was November 4, 1978.*fn4 On November 14, 1978, appellee entered an open guilty plea to these offenses before the Honorable Isaac S. Garb of the Bucks County Court of Common Pleas.*fn5 Sentence was deferred pending a pre-sentence investigation.*fn6
In a February 14, 1979, letter, Judge Garb informed appellee's former counsel, Bernard F. Gray, that his review of the pre-sentence report indicated that appellee denied his guilt of the charges against him. "Therefore, [the letter continued] I will assume that his plea of guilty will be withdrawn and I am directing the District Attorney to fix this matter for trial." A carbon copy of that letter was sent to the district attorney's office. Appellee's case was thereafter listed for trial and continued on various occasions. On September 21, 1979, the Commonwealth filed a petition to extend the time for trial under Pa.R.Crim.P. 1100(c).*fn7 A hearing was held on the Commonwealth's petition, and on appellee's oral motion to dismiss the charges, on October 2-3, 1979. The Honorable William H. Rufe, III, dismissed appellee's case under Pa.R.Crim.P. 1100 on October 3, 1979.
[ 304 Pa. Super. Page 262]
In discharging appellee, the lower court ruled that, once Judge Garb notified appellee that his guilty plea would not be accepted, the original 180 day period under Pa.R.Crim.P. 1100 recommenced. Since 149 days had elapsed when appellee's guilty plea was entered on November 14, 1978, including excludable time prior thereto, the Commonwealth had thirty-one days remaining within which to try appellee after February 14, 1979. Thus, appellee had to be brought to trial on or before Monday, March 19, 1979.*fn8 Finding that the Commonwealth had neither tried appellee within that time or, alternatively, timely petitioned to extend the time for trial under Pa.R.Crim.P. 1100(c), the lower court sustained appellee's motion to dismiss the charges.
In this appeal, the Commonwealth argues, as it did below, that (a) the February 14, 1979, letter in which Judge Garb indicated that he "assumed [appellee's] guilty plea will be withdrawn," is not tantamount to an effective plea withdrawal so as to re-invoke the provisions of Pa.R.Crim.P. 1100, and (b) even assuming a valid plea withdrawal on that date, the ...