dissenting:
I respectfully dissent. I fully agree with the majority that the withdrawal of a guilty plea should not have been granted without a demonstration of a fair and just reason for the withdrawal nor without an inquiry into whether the Commonwealth would be prejudiced by the withdrawal of the plea. However, I nonetheless find that the Commonwealth waived any challenge to the withdrawal of the plea by failing to make any objection at the time the plea was withdrawn. Because I dissent, I address each of the Commonwealth’s contentions on appeal.
FACTS AND PROCEDURE
In December of 1984, appellee, Charles Hollenbach, was arrested and charged with more than sixty-four counts of burglary, theft and related offenses. In July of 1985, appellant entered a guilty plea to all counts. A pre-sentence investigation report was made and sentencing was scheduled for December 27, 1985. On that date, however, appellant withdrew his guilty plea.
Sometime thereafter, presumably within the 120-day period mandated by Pa.R.Crim.P. 1100, the Commonwealth filed a petition for extension of time pursuant to Pa.R.Crim.P. 1100(c) with regard to the charges docketed at CR-85-30.1 Inexplicably, no petition for extension was filed with regard to the charges at the other docket numbers, which are the subject of the instant appeal.
On May 30, 1986,2 the appellee filed a motion pursuant to Rule 1100 to dismiss the charges docketed at CR numbers *29385-31 to 5-46, 85-56, and 85-57. A hearing was held on July 3, 1986. Although the Commonwealth requested and was granted permission to submit a post-hearing brief to the trial court (N.T. 7/3/86 at 6), none appears in the record certified to this Court on appeal. On August 1, 1986, the trial court entered an order and opinion granting appellee’s motion to dismiss. Timely notice of appeal was filed by the Commonwealth.
On appeal, the Commonwealth contends, alternatively, that either: 1) appellee’s original guilty plea was never properly withdrawn as to the charges listed at the above docket numbers, and therefore, the 120-day Rule 1100 period never commenced; or, 2) if the guilty plea was properly withdrawn as to the charges at the above docket numbers, then the Commonwealth’s petition for extension of time under Pa.R.Crim.P. 1100(c) should have been construed to apply to the charges at the above docket numbers. Upon review of the record, the briefs of the parties, and the opinion of the trial court, I find that neither contention has been properly preserved for appeal by the Commonwealth.
I.
The Commonwealth first contends that appellee’s guilty plea was never properly withdrawn, and therefore, the Rule 1100 period never commenced. Appellant argues that: 1) no written petition to withdraw the guilty plea was filed; 2) only the charges at CR number 85-30 were called, therefore only the plea to charges at that docket number could properly be withdrawn; 3) the trial court did not conduct a hearing as to whether appellee had a fair and just reason to withdraw the plea; 4) the trial court made no definite order granting withdrawal of the plea; 5) no order granting withdrawal of the plea was ever docketed; and finally, 6) the record is unclear with respect to the issue of withdrawal *294of the guilty pleas, and therefore, no run date was reasonably ascertainable. (See Commonwealth’s Brief at 6-7).
A.
The Commonwealth’s assertions of confusion notwithstanding, I find that the record fully sustains the trial court’s conclusion that appellant had requested to withdraw his plea as to “all counts” at each of the docket numbers. The transcript states in pertinent part:
MR. ROSINI: Now, it is my understanding that at this time that Mr. Hollenbach is present to withdraw his plea of guilty and to be scheduled for trial. He is present in court with his attorney Ann Targonski for the purpose of withdrawing his plea.
THE COURT: There is more than just 85-30, there is 85-j5, and they go up.
MS. TARGONSKI: Your Honor, it goes 31, 32, 33, 34, 35, 36, 37, through—
THE COURT: On the sentencing scheduled for today we are going to have a withdrawal of the guilty plea.
MS. TARGONSKI: On all counts.
THE COURT: On all counts.
(N.T. 12/27/85 at 2-3). (Emphasis added).
It is equally clear from the record of the hearing that the motion to withdraw the guilty plea was granted.
THE COURT: ... Let me just get this record straight. Mr. Hollenbach on the 5th of July, 1985, you entered a guilty plea, your age is 22, you have had a tenth grade education, and, you must have worked at some kind of work. What kind of work did you do?
THE DEFENDANT: I work for mentally retarded patients.
THE COURT: Well, the purpose Chuck, is so that the record reflects that on the 5th of July, 1985 you entered a guilty plea. Someone of your age, of your education, of your work experience, now wishes to withdraw his guilty plea, and wants to go to trial in this matter, these *295matters. Is that what you want to do today, withdraw your guilty plea?
THE DEFENDANT: Yes.
THE COURT: Now, Mr. Rosini, you might want to say something for the Commonwealth on when this is going to be rescheduled.
MR. ROSINI: Your Honor, whether it can be scheduled in January the Commonwealth would have 120 days to bring the Defendant to trial after his plea. He will be scheduled at the next available opportunity to try the defendant.
THE COURT: Well, I know that there were about 12 sentences that I was going to recite but, with the withdrawal of the guilty plea we’ll mark the matter continued and the Commonwealth will notify Mr. Hollenbach and counsel when this is scheduled for trial. That’s all we will be able to do in this matter today.
(N.T. 12/27/85 at 2-3). (Emphasis added). The foregoing clearly reveals awareness on the part of the Commonwealth that the motion to withdraw the plea had been granted and that a trial was to be scheduled; by acknowledging a new 120-day period in which to bring appellant to trial the Commonwealth implicitly acknowledged the fact that the plea had been withdrawn. See Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982) (when a guilty plea is withdrawn, a new 120-day period in which to bring defendant to trial commences). The awareness of the Commonwealth that the plea had been withdrawn is also demonstrated by the failure of the Commonwealth during or after that hearing to move for sentencing on the portion of the prior plea it alleges was still in force, despite the fact that the presentence investigation had been completed prior to the December 27, 1985 hearing.
B.
The record does confirm, however, that appellee did not file a written petition to withdraw his plea, no order granting the motion was ever entered on the docket, and the trial *296court did not require appellee to articulate fair and just reasons in support of his motion to withdraw his plea or inquire as to the possibility of prejudice to the Commonwealth if the plea were withdrawn. We must, then, consider the legal significance of these facts.
1.
The absence of a written motion for withdrawal of the guilty plea has no effect whatsoever on the validity of the plea withdrawal. Pursuant to Pa.R.Crim.P. 320, “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” Clearly, the use of the phrase “permit or direct” vests the trial court with authority to direct withdrawal of the plea sua sponte. Thus, when the trial court discovers, in a pre-sentence investigation report, assertions by the defendant which give the court reason to doubt the voluntary, knowing, and intelligent nature of a prior guilty plea (or its equivalent, a nolo contendere plea), the court may in its discretion direct the plea to be withdrawn, whether or not a written motion to withdraw the plea has been filed by the defendant. Cf. Commonwealth v. Mascitti, 368 Pa.Super. 454, 459, 534 A.2d 524, 526-27 (1987) (trial court may in its sound discretion sua sponte reconsider, reject plea agreement, and permit defendant to withdraw his plea when defendant asserted his innocence to the pre-sentence report investigator; construing Pa.R.Crim.P. 319); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982) (although no motion to withdraw the guilty plea was filed, trial court withdrew plea for defendant where defendant denied his guilt when interviewed by pre-sentence report, investigator).
Moreover, although a written motion may certainly be filed in support of a defense request that the court exercise its discretion to permit pre-trial withdrawal of a plea pursuant to Pa.R.Crim.P. 320, the rule itself does not require the filing of a written petition. The significance of the absence of express language requiring a written petition in Pa.R. Crim.P. 320 is amplified by the existence of such language *297in Pa.R.Crim.P. 321(a) which states, “[a] motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.” (Emphasis added). A written motion is simply not a prerequisite to the proper exercise of the court’s discretionary authority to permit or direct the withdrawal of a guilty plea pursuant to Pa.R.Crim.P. 320. Cf. Commonwealth v. Whittall, supra, 304 Pa.Superior Ct. 258, 265, 450 A.2d 669, 673 (1982) (“[i]t would elevate form over substance to hold that appellee was still bound by his plea merely because he failed to file a written withdrawal petition”). I note that appellant did move to withdraw his plea in an oral motion on the record in open court. See Pa.R.Crim.P. 9020 (all motions must be written except, inter alia, when made in open court during a trial or hearing); cf. Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984) (oral statements on the record in open court constitute a contemporaneous written statement pursuant to 42 Pa.C.S.A. § 9721(b)).
2.
I place no significance whatsoever on the fact that no order granting the motion to withdraw the guilty plea was entered on the trial court’s docket. The Commonwealth has not cited, and I do not find, any authority for the proposition that an interlocutory order or ruling made in the presence of the parties on the record in open court in a criminal case must be formalized by an order entered on the court docket in order to have effect. To the contrary, docket entries in such cases merely memorialize the prior completed act.
3.
The Commonwealth also argues on appeal that there could be no valid withdrawal of the guilty plea because appellee established no fair or just basis upon which withdrawal of the plea could be granted. Undeniably, the law requires the statement of a fair and just reason before a trial court may properly permit withdrawal of a guilty plea *298prior to sentence; moreover, even when such a reason is established withdrawal may not be permitted if the Commonwealth would be substantially prejudiced. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Dorian, 314 Pa.Super. 244, 248, 460 A.2d 1121, 1123 (1983), aff'd 503 Pa. 116, 468 A.2d 1091 (1983). I agree that the trial court erred in failing to state, or require appellant to state, a fair and just reason for withdrawing the plea and in failing to determine whether the Commonwealth would be prejudiced by withdrawal of the plea.
Nonetheless, when the Commonwealth stands by silently while the court exercises its discretion in open court to grant the motion, thereafter acknowledges the grant of the motion by filing a petition for an extension of time in which to bring appellant to trial, and does not voice objections to the grant of the motion until it is faced with dismissal of the charges inexplicably omitted from its timely Pa.R.Crim.P. 1100(c) petition, I can reach no other conclusion but that long-settled principles of waiver preclude the Commonwealth from raising belated challenges to the court’s exercise of its discretion under Pa.R.Crim.P. 320. I cannot agree with the implicit assumption of the majority that the trial court’s procedural errors in granting the plea withdrawal rendered the plea withdrawal void ab initio, or that the errors were such that they could not be waived by the Commonwealth. Rather, I find the defects in the plea withdrawal proceedings to have been waived by the Commonwealth’s silent acquiescence to the withdrawal of the plea on December 27, 1985.
II.
The Commonwealth’s second contention is that the timely petition for extension of time in which to bring appellee to trial on the charges docketed at CR-85-30 should have been treated as applying to all of the charges at each of the docket numbers, as all the charges had previously been *299treated as a unit. The Commonwealth notes that there had been one guilty plea originally entered, one pre-sentence report ordered, and one motion to withdraw the guilty plea. The Commonwealth then reasons:
To bind the Commonwealth to its petition relative only to those cases reflected in the caption and not to bind Defendant to withdrawal of a guilty plea to only those cases reflected in the caption of the hearing of 27 December 1985, would serve only the technical requirements of the law.
(Commonwealth’s Brief at 8-9). The majority do not reach this contention. Although the Commonwealth’s argument on appeal is persuasive and logical, I would find that it too was waived.
At the hearing on December 27, 1985, both the court and counsel for appellee indicated that the plea withdrawal was to apply to all of the charges at each of the docket numbers. (N.T. 12/27/85 at 1). At the hearing on appellee’s Rule 1100 motion on July 3, 1986, the Commonwealth argued steadfastly that no proper plea withdrawal had been made, but that if any plea had been withdrawn it could only be the plea to the charges docketed at CR-85-30. (N.T. 7/3/87 at 2-5). Nowhere in the record certified to this Court on appeal is there the slightest indication that the Commonwealth sought to have the trial court apply the timely Rule 1100(c) petition to the remaining charges. It is axiomatic that appellate courts will not consider issues or theories not posited or argued by appellant in the court below. See Commonwealth v. Johnson, 355 Pa.Super. 123, 140-41, 512 A.2d 1242, 1251 (1986), citing Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978) and Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). Consequently, I would deem the Commonwealth’s second contention waived.
III.
The trial court’s opinion concludes:
It is not the practice of this Court to dismiss criminal charges based on mere technical violations. However, *300the Defendant’s right to a speedy trial is guaranteed by the Constitution. As such, that right must be protected. In the case at bar, any doubt must be resolved in favor of the Defendant. Since the Defendant was not brought to trial within 120 days of December 27, 1985, the date that he withdrew his guilty pleas, Defendant’s Rule 1100 rights have been violated.
(Trial Ct. Op. at 2). (Emphasis added). Theoretically, Rule 1100 merely protects a defendant’s right to a speedy trial; procedural rules, are not intended to create new and separate rights unto themselves. Pa. Const. Art. V, sec. 10; Commonwealth v. Fowler, 451 Pa. 505, 510-12 & n. 6, 304 A.2d 124, 127-28 & n. 6 (1973). Nonetheless, in the instant case the rule achieved such results.
Discharge in the instant case was not predicated upon a violation of appellant’s speedy trial rights, but upon a violation of Rule 1100. The trial court did not consider whether the length of the delay, the reason for the delay, the occurrence and timing of an assertion of speedy trial rights by the defendant, and the prejudice to the defendant caused by the delay in this case mandated discharge. Cf. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The trial court did not require appellee to establish a constitutional violation based upon a presumption arising from the expiration of the Rule 1100 period, nor was the Commonwealth permitted to establish the absence of a constitutional violation. Rather, the trial court held that discharge was required in the instant case because the Commonwealth by error, neglect, confusion, or a combination thereof failed to file a timely motion pursuant to Pa.R.Crim.P. 1100(c) as to those charges.
In Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979) (per Nix, then J.; Roberts and Manderino, JJ., join; Egan, C.J., and Larsen, J., dissent), our Supreme Court stated:
... a request for an extension under section (c) must be made prior to the expiration of the prescribed period under the Rule. Thus, even if this record might have met the requirements for the grant of such an exten*301sion, the avenue is not here available to the Commonwealth since it failed to attempt this course prior to [the expiration of the period for commencement of trial].
398 A.2d at 976 (emphasis added); see also Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986). Thus, under the clear directive of Commonwealth v. Morgan, supra, the trial court was required to discharge appellee based upon the Commonwealth’s error, despite the apparent absence of a constitutional speedy trial violation (as indicated by the fact that a timely Rule 1100(c) motion for an extension of time was granted as to the charges docketed at CR-85-30 which had previously been treated together with the instant charges as a unit at the original guilty plea, for the pre-sentence report, and for the plea withdrawal).
Though I would agree that Morgan mandated discharge in this case, I would strenuously urge reconsideration of Morgan by our Supreme Court. The Morgan decision in 1979 represents the high water mark for our Supreme Court’s reliance upon technical enforcement of the Rule 1100 bright-line approach. The shift away from technical enforcement which has occurred since 1979 was explained by our Supreme Court in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), as follows:
Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice.
466 A.2d at 1014. See also Commonwealth v. Wells, 513 Pa. 463, 521 A.2d 1388 (1987); Commonwealth v. Knupp, 512 Pa. 614, 518 A.2d 252 (1986); Commonwealth v. Koonce, 511 Pa. 452, 515 A.2d 543 (1986); Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984); Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1980). Finally, on December 31, 1987, Pa.R.Crim.P. 1100 was substantially amended, specifically deleting the procedure whereby *302the Commonwealth was required to file a timely petition for an extension. Pa.R.Crim.P. 1100 (as amended December 31, 1987, effective immediately).3 The new rule eliminates the risk of discharge as the result of untimely or defective extension petitions in future cases; those amendments came too late, however, to affect this case.
I would submit that the rule in Morgan leads to an inappropriate result in this case, a result which is directly at odds with the reasoning expressed in the more recent Rule 1100 cases cited above. If this Court were free to reject Morgan, I would not hesitate to join the majority in reversing appellee’s discharge. Nonetheless, I am unwilling to ignore the Commonwealth’s waiver of defects in the plea withdrawal, and am unable to escape the clear mandate of Commonwealth v. Morgan, supra. Thus, I reluctantly dissent.
BECK. J., joins Parts I & II.. On May 30, 1987, appellant re-entered a guilty plea to the charges pending at that docket number. The final disposition of those charges is not reflected in the briefs of the parties or in the record before this Court.
. Both the Commonwealth’s and appellee’s briefs indicate the motion was filed March 30, 1986; the docket and the time stamped motion itself are dated May 30, 1986. (Commonwealth's Brief at 4, Appellee’s *293Brief at 1). The difference is noteworthy in that, assuming a valid plea withdrawal December 27, 1985, the new 120-day period to bring appellee to trial would not have expired until April 25, 1986 (after March 30, 1986 but before May 30, 1986). The May 30, 1986 date on the docket and time stamped motion, of course, controls.
. Under the new rule, when an accused is incarcerated, he must be brought to trial within 180 days; upon expiration of the 180 day run-date, the accused is entitled to immediate release on nominal bail. An accused who is released on bail must be tried within 365 days; upon expiration of the 365 day run-date the accused may petition for discharge with prejudice. The automatic exclusions from the running of the time limits formerly included in Pa.R.Crim.P. 1100(d) have been retained verbatim in new Pa.R.Crim.P. 1100(c).