Appeal from the Judgment of Sentence docketed February 2, 1989 in the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 87CR526.
Charles R. Witaconis, Asst. Public Defender, Scranton, for appellant.
Andrew Jarbola, Dist. Atty., Scranton, for Com., appellee.
Del Sole, Tamilia and Cercone, JJ. Tamilia, J., files a dissenting statement.
[ 387 Pa. Super. Page 389]
This is an appeal of a judgment of sentence following the non-jury trial of Appellant, Royce Welsh, who was convicted of the crime of escape because of his failure to return to a half-way house after he was given a temporary pass to visit his family.
Mr. Welsh contends on appeal that the court erred in denying his pre-trial motion to dismiss due to the violation of Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. We agree and therefore need not address the other issues raised.
Appellant was charged by written complaint with the crime of escape on February 21, 1986. He was not apprehended until April 20, 1987 and then a preliminary hearing was held on April 23, 1987. Under either old Rule 1100(d)(1) or amended Rule 1100(c)(3)(i), the period from February 21, 1986 to April 20, 1987 is excluded time, and therefore the time for purposes of this rule would start running from April 20, 1987.
Until the amendment of Rule 1100, effective December 31, 1987, Appellant should have been tried by Oct. 20, 1987, 180 days from the date he was apprehended, however, the Commonwealth filed a motion for the extension of time on August 20, 1987, and the court granted the Commonwealth an extension to November 20, 1987.
On November 16, 1987 the Commonwealth then filed a second motion for extension of time for trial. Judge Cottone, on December 2, 1987, erroneously entered an extension of time until February 12, 1988, because the Commonwealth
[ 387 Pa. Super. Page 390]
had led him to believe the motion was uncontested. On December 15, 1987, the trial court, with the Hon. James Walsh, P.J. presiding, held a new hearing on the same motion for extension, and on Appellant's motion to dismiss based on Rule 1100 violations.
On January 14, 1988 the court ruled, by order and opinion, that the motion to dismiss was denied, and the motion to extend was denied because there was no due diligence on ...