Appeal from the Order entered November 15, 1984 in the Court of Common Pleas of Northumberland County, Criminal Division, at No. CR-84-377.
Anthony J. Rosini, Shamokin, for appellant.
James J. Rosini, Milton, for appellee.
Spaeth, President Judge, and McEwen and Beck, JJ. McEwen, J., dissents. Spaeth, President Judge, joined in this opinion before the expiration of his term on the court.
[ 350 Pa. Super. Page 57]
The issue before us is whether a notice of appeal from an order of a district justice to the court of common pleas acts as a stay to exclude the appeal time for purposes of Pa.R.Crim.P. 1100. We hold that such time is excludable. Therefore, the common pleas court erred in not excluding the appeal time in its Rule 1100 calculation and in dismissing the charges against appellee Reiprish. We vacate the order of the common pleas court and reinstate the charges against appellee.
Appellee was arrested following a traffic accident on April 28, 1984. Approximately 20 days thereafter, on May 18, 1984, a criminal complaint was filed charging appellee with driving under the influence of alcohol ("DUI"), 75 Pa.C.S.A. § 3731(a)(1) and § 3731(a)(4), and two related summary offenses. On June 21, 1984, at a preliminary hearing, the district justice dismissed the DUI charge for the reason that the Commonwealth failed to comply with Pa.R.Crim.P. 130(d). Rule 130(d) requires the prompt filing of a complaint when an arrest has been made without a warrant.
On June 26, 1984, in the court of common pleas, the Commonwealth filed a petition for a writ of certiorari and/or notice of appeal contesting the dismissal of the DUI charge against appellee. On June 27, 1984, the common pleas court issued an order that the district justice transmit the record in the case. The trial court's order also stated "[a]ll further proceedings on this matter and the summary offenses to which the defendant pled guilty are hereby stayed until further order of this court."
[ 350 Pa. Super. Page 58]
In reviewing the Commonwealth's appeal, the common pleas court held on August 17, 1984, that the remedy for a violation of Rule 130(d) was suppression of the evidence attributable to improper delay rather than dismissal of the charges involved. Accordingly, the court reversed the dismissal of the DUI charge and remanded the case to the district justice. A second preliminary hearing was held by the district justice on October 9, 1984, and appellee was bound over for trial in the court of common pleas.
On October 10, 1984, the Commonwealth filed a Rule 1100 petition for extension in the common pleas court. The original run date for the commencement of trial was November 14, 1984, or 180 days from the May 18, 1984, filing of the criminal complaint. The court denied the Commonwealth's petition and refused to entertain a second petition. On November 15, 1984, the court entered an order dismissing all charges against appellee pursuant to Rule 1100.
The Commonwealth asserts on appeal that the time period between June 27, 1984,*fn1 when the common pleas court ordered all proceedings stayed pending the Commonwealth's appeal, and August 17, 1984, when the court decided the Commonwealth's appeal and remanded the matter, is excludable when computing the 180-day period under Rule 1100. We agree with the Commonwealth.
In the orderly administration of criminal justice, an appeal generally acts as an automatic stay for Rule 1100 purposes. See Pa.R.A.P. 1701(a); Pa.R.A.P. 1764. The question is whether this principle is applicable to appeals from district justice to common pleas courts for Rule 1100 purposes. In ...