No. 1007 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, No. 2163-80.
Richard J. Hodgson, Norristown, for appellant.
Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
Montemuro, Watkins and Cercone, JJ.
[ 327 Pa. Super. Page 272]
This matter is before the court on the appeal of Richard Paprocki from the denial of his motion in arrest of judgment on the basis of Pa.R.Crim.P. 1100 (hereinafter "Rule 1100"). As with many alleged Rule 1100 violations, the procedural history of this case is long and tortuous.
Appellant was arrested on July 11, 1980, and charged with burglary,*fn1 theft by unlawful taking,*fn2 receiving stolen property,*fn3 and criminal conspiracy.*fn4
After a preliminary hearing, appellant was bound over for trial on all charges. Appellant's first trial commenced on November 17, 1980. On that same date, a mistrial was declared as a result of improper questioning by the prosecutor. Appellant's second trial commenced the following day, November 18, 1980. On November 25, 1980, another mistrial was declared, this time because the jury was deadlocked.
On February 23, 1981, appellant filed an omnibus pretrial motion to suppress evidence. On February 24, 1981, appellant filed a motion to dismiss on double jeopardy grounds. Both motions were ordered by the court as rules returnable at the time of trial. Trial had been scheduled for February 25, 1981.
On February 25, 1981, the case was called for trial a third time. At that time, appellant's motion to dismiss was heard and denied. Appellant decided to take an immediate appeal on the denial of this motion. A colloquy was held on the record wherein appellant confirmed that he wished to appeal the double jeopardy issue in this posture rather than pursue it on posttrial motions after possible conviction. Appellant's notice of appeal was filed that day, February
[ 327 Pa. Super. Page 27325]
, 1981. No further action was taken by the lower court during the pendency of this double jeopardy appeal.
On August 19, 1981, appellant withdrew his appeal and the Superior Court remanded the record on August 20, 1981. The appellant was scheduled for trial on November 24, 1981. The case was called on that date and the Commonwealth and counsel for appellant agreed to pass the case until December 7, 1981. Thereafter, on December 7, 1981, appellant filed the instant motion to dismiss on the ground that both Rule 1100 and his constitutional rights to a speedy trial had been violated. Appellant's motion to dismiss was denied and the case was again continued, upon the ...