Appeal from the Order of the Superior Court, dated May 9, 1988, at No. 00500 Philadelphia 1987, reversing the Order of the Court of Common Pleas of Delaware County, Criminal Division, dated January 21, 1987, at No. 2623-83, 379 Pa. Super. 661, 545 A.2d 385 (1988).
Frank J. Marcone, Springfield, for appellant.
William H. Ryan, Jr., Dist. Atty., Sandra L. Elias, Deputy Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.
The issue raised by this appeal is whether a trial court must commence counting the 120-day limitation period for retrial set forth at Pa.R.Crim.P. Rule 1100*fn1 either from the date on which the trial court grants a new trial or declares a mistrial, with exclusions made for those days on which the case is pending on appeal, or from the date that all of the appeals are disposed of and the record is remanded from the appellate court.
The facts giving rise to this appeal are as follows. On May 31, 1983, appellant, Robert Marconi, was arrested and charged with possessing prohibited offensive weapons (18
Pa.C.S.A. § 908); receiving stolen property (18 Pa.C.S.A. § 3925); causing or risking catastrophe (18 Pa.C.S.A. § 3302); recklessly endangering another person (18 Pa.C.S.A. § 2705); and violations of the Controlled Substance, Drug, Device and Cosmetic Act, i.e., knowingly or intentionally possessing a controlled or counterfeit substance (methamphetamine) (35 P.S. § 780-113(a)(16)); possession of a controlled substance with intent to deliver (methamphetamine) (35 P.S. § 780-113(a)(30)); and possession with intent to use drug paraphernalia (35 P.S. § 780-113(a)(32)).
The case was called for trial before a jury in the Court of Common Pleas of Delaware County, on October 19, 1983. After the prosecution and defense had rested, but before the case proceeded to closing arguments, the jury panel was reduced to eleven members due to the twelfth juror's excuse for cause. Appellant elected not to continue with this jury configuration and, on October 21, 1983, the trial court declared a mistrial for reasons of manifest necessity.
Trial was rescheduled for December 12, 1983, but on December 8, 1983, appellant filed a motion to dismiss the charges against him on grounds of double jeopardy. This motion was denied on December 9, 1983, and appellant immediately filed a notice of appeal to Superior Court. On March 22, 1985, Superior Court affirmed the trial court's order denying appellant's motion to dismiss on grounds of double jeopardy, and on April 22, 1985, the record was remanded to the trial court which then rescheduled trial for May 13, 1985.
On May 16, 1985, (the case was not reached for trial on May 13) appellant made an application for a continuance, which was granted, and the trial was rescheduled for July 8, 1985. On July 2, 1985, appellant again requested a continuance, which was granted, and the trial was rescheduled for October 18, 1985. Appellant filed a waiver of Rule 1100 at this time for the period from July 2, 1985 to October 18, 1985. On July 5, 1985, the Commonwealth filed an ...