No. 571 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 81-09-561-563.
Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Barry H. Oxenburg, Philadelphia, for appellee.
Spaeth, President Judge, and Popovich and Hoffman, JJ. Spaeth, President Judge, files a concurring opinion.
[ 327 Pa. Super. Page 363]
The Commonwealth contends that the lower court erred in dismissing the charges against appellee pursuant to Pa.R.Crim.P. 1100(f). We agree that the Commonwealth's petition to extend was timely filed and, accordingly, reverse the lower court's dismissal and remand for a hearing on the Commonwealth's extension petition.
Appellee was arrested and charged with burglary, criminal trespass and criminal conspiracy on May 22, 1981, resulting in a Rule 1100 rundate of November 18, 1981.
[ 327 Pa. Super. Page 364]
Appellee's May 27 preliminary hearing was continued until June 26, because appellee failed to appear with counsel. On June 26, because appellee again appeared without counsel, bail was revoked and the case was listed for August 14. On August 14, an appearance was entered on appellee's behalf by Peter Levin, private counsel retained by appellee's mother. Bail was reinstated; however, the preliminary hearing was once again continued until September 9 because of the unavailability of the complaining witness. The preliminary hearing was held on September 9, at which time appellee was bound over for trial. At the September 23 arraignment, appellee was determined to be eligible for court-appointed counsel and trial was set for November 25. On November 24, however, eight days after the Rule 1100 rundate, the Commonwealth petitioned for an extension under Rule 1100(c) claiming 79 days of excludable time pursuant to appellee's failure to retain counsel from May 27 to June 26 and from June 26 to August 14. Subsequent to appellee's filing a motion to dismiss pursuant to Rule 1100(f) and a hearing on the two petitions, the lower court denied the Commonwealth's petition to extend as untimely and granted appellee's motion for dismissal.*fn1 Upon the Commonwealth's petition for reconsideration, the lower court vacated its order and entered a rule to show cause why the Commonwealth's petition for reconsideration should not be granted. After a hearing, the court reinstated its order dismissing appellee. This appeal followed.
The Commonwealth alleges that its petition to extend was timely filed because the period from May 27 through June 26 was excludable pursuant to Rule 1100(d)(1).*fn2 We agree.
[ 327 Pa. Super. Page 365]
Pa.R.Crim.P. 1100(d)(1), in effect at the time of appellee's arrest, provided:
%(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage ...