Appeal from Orders of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 83-02-1615 & 1616.
Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellant in No. 3262 and appellee in No. 3388.
Gwendolyn Bright, Assistant Public Defender, Philadelphia, for appellant in No. 3388 and appellee in No. 3262.
Wieand, Beck and Johnson, JJ.
[ 358 Pa. Super. Page 107]
The trial court denied a Commonwealth petition to extend the time for commencing trial and dismissed criminal charges of aggravated assault and related offenses on grounds that the Commonwealth had violated Pa.R.Crim.P. 1100. On the same day, the court denied a motion to dismiss which had been filed by the defendant, Isabel Purnell, alleging double jeopardy and a violation of 18 Pa.C.S. § 110. The Commonwealth appealed from the order dismissing the charges, and the defendant filed a cross-appeal from the order refusing to dismiss on the alternate grounds.*fn1 We reverse the order dismissing the charges and remand for further proceedings. The order refusing to dismiss on double jeopardy grounds or on grounds that 18 Pa.C.S. § 110 had been violated will be affirmed.
On January 22, 1983, Purnell was arrested for disorderly conduct after she had shouted and disrupted the efforts of police officers who were attempting to arrest her companion, a Mr. Steplight. Purnell was taken into custody and transported to the police station where, upon arrival, she threatened a police officer and kicked him in the groin, causing serious injury. A criminal complaint was filed the same day; it charged Purnell with aggravated assault, simple assault and terroristic threats.*fn2 The mechanical rundate for Rule 1100 purposes, therefore, was July 21, 1983. A preliminary hearing was originally scheduled for February 7, 1983, but it was continued until February 15, 1983 at Purnell's request. The preliminary hearing was held on February 15, and Purnell was bound over for court.
[ 358 Pa. Super. Page 108]
Trial was scheduled for May 9, 1983. On that date, the Commonwealth appeared and was prepared to proceed to trial. Purnell, who was on bail, failed to appear, and a bench warrant was issued for her arrest. On May 12, 1983, the Commonwealth filed a petition requesting an extension pursuant to Rule 1100(c). Purnell was found on July 12, 1983; and at a bench warrant hearing held the same day, the warrant was lifted and trial was rescheduled for August 8, 1983. This, the court determined, was the earliest possible date on which trial could be held. On July 19, 1983, three days prior to the original Rule 1100 rundate, the Commonwealth amended its prior petition for an extension. A hearing on its amended petition was also scheduled for August 8, 1983.
On August 8, 1983, both parties appeared before the Honorable William J. Manfredi. The Commonwealth was then prepared to proceed with trial. However, it was unaware that a motion to dismiss on the basis of 18 Pa.C.S. § 110 had been filed by the defense. This motion, according to a stamped copy produced by Purnell at the time of hearing, had been filed in the Clerk's Office on May 3, 1983. This motion, however, was not made a part of the Clerk's record of this case,*fn3 and the Assistant District Attorney was unaware of it until she arrived in court on August 8. Having been surprised by this additional motion, the Commonwealth requested a continuance to explore with its witnesses the circumstances relied upon by the defense to support its motion to dismiss. The trial court granted the Commonwealth's requested continuance, and the case was rescheduled for November 3, 1983, which was certified as the earliest available date.
On November 3, 1983, the parties appeared before the Honorable John L. Braxton for hearing on pre-trial matters and also for trial. Judge Braxton denied the Commonwealth's request for an extension and directed that the defendant be discharged. The request of the defendant for
[ 358 Pa. Super. Page 109]
dismissal on grounds of a Section 110 violation, ...