No. 165 Pittsburgh, 1982, Appeal from the Judgment of Sentence of February 4, 1982, Court of Common Pleas, Erie County, Criminal Division at No. 668 of 1980.
Dennis G. Kuftic, Edinboro, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
Cavanaugh, Johnson and Montgomery, JJ. Cavanaugh, J., concurs in the result. Montgomery, J., noted his dissent.
[ 324 Pa. Super. Page 551]
Appellant was convicted in a non-jury trial of retail theft,*fn1 third offense and sentenced to 3 1/2 to 7 years imprisonment. Two issues are raised on this direct appeal: (1) whether the trial court erred in denying appellant's petition to dismiss the complaint pursuant to Pa.R.Crim.P. 1100 (Rule 1100) and (2) whether the trial court erred in accepting into evidence appellant's prior, uncounseled summary retail theft convictions to raise the grade of the instant charges to a felony. Finding merit in appellant's first argument, we vacate judgment of sentence and discharge appellant.
The first issue concerns when Rule 1100's 180 day time limitation commenced. The procedural history indicates that appellant was charged by private criminal complaint on August 7, 1979 with retail theft*fn2 which occurred on July 19, 1979. This complaint was signed by the security guard for the store and also signed by the district justice. Process against appellant, in the form of a summons, was issued the same day and returned August 9. On August 20, appellant appeared before the district justice for fingerprinting. An arrest warrant was issued on December 6 for appellant's failure to appear as requested. Pursuant to this warrant, appellant was arrested on February 26, 1980 and preliminarily arraigned on February 28. He was incarcerated following arraignment.
The complaint was not approved by the district attorney's office until March 26, 1980. Appellant was held for court on April 18, 1980. A petition for extension of time was filed September 22, 1980 and subsequently granted. The information, charging appellant with retail theft, third offense was filed September 23. Various petitions for extensions of time were subsequently filed by the Commonwealth as well as waivers of Rule 1100 by appellant. Appellant's petition
[ 324 Pa. Super. Page 552]
to dismiss pursuant to Rule 1100 was filed June 11, 1981 and following its denial, trial commenced.
Rule 1100 states, in pertinent part:
(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
Appellant argues that the 180 day period commenced on August 7, 1979, the date the complaint was filed and process issued. As the run date would then have been February 3, 1980,*fn3 appellant argues that Rule 1100 was violated. The Commonwealth argues that the 180 day period did not commence until the complaint was approved by the district attorney's office on March 26, 1980 and hence, when ...