No. 203 Harrisburg 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of York County at No. 181-A CA 1981.
Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellant.
William Costopolous, Lemoyne, for appellee.
Wickersham, Cirillo and Watkins, JJ.
[ 324 Pa. Super. Page 403]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas, Criminal Division, of York
[ 324 Pa. Super. Page 404]
County directing that the charges of arson and related 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 November 14, 1980. The run date under Rule 1100 was May 13, 1981. 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.
On June 29, 1981, the Commonwealth filed an application for extension of time for commencement of trial. The appellee filed a motion to dismiss pursuant to Rule 1100. The lower court held that 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 3. Therefore, on July 9, 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 charges with prejudice against Appellee on the basis of a ...