No. 283 Harrisburg 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of York County at No. 181-B CA 1981
Sheryl Ann Dorney, Assistant District Attorney, York, for Com., appellant.
William Costopoulos, Lemoyne, for appellee.
Wickersham, Cirillo and Watkins, JJ.
[ 323 Pa. Super. Page 418]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas, Criminal Division, of York County directing that the charges of arson and related
[ 323 Pa. Super. Page 419]
offenses be dismissed with prejudice because of the violation of Rule 1100. For the reasons set forth below, we reverse.
In the instant case, the written complaint was filed against the appellee on January 13, 1981. The run date under Rule 1100 was July 13, 1981.*fn1 There were no orders extending the commencement of trial.
A plea bargain agreement was entered into on April 15, 1981 and was presented to the court on May 1, 1981 before the Honorable Joseph E. Erb who indicated that he would require a pre-sentence investigation, but accepted a nolo contendere plea with the appellee having the right to withdraw his plea in the event the plea bargain was not accepted. On June 26, 1981, Judge Erb advised the appellee that he would not accept the plea bargain because of the provision of "no jail" time.
The lower court found that the Commonwealth filed an application for extension of time for commencement of trial after the July 13, 1981 run date. The lower court, in denying the Commonwealth's application for an extension, held that there was no excludable time because the acceptance of the plea of nolo contendere, subject to the terms of the plea bargain, did not signify "commencement of trial" for Rule 1100 purposes. Lower ct. op. at 7. Therefore, on September 17, 1981, the lower court dismissed with prejudice the charges against the appellee on the ground that Rule 1100 had been violated. The Commonwealth timely appealed.
The Commonwealth presents the sole question to be considered on appeal as follows:
Whether the lower court erred in dismissing the charges with prejudice against Appellee ...