Appeal from the Order of the Court of Common Pleas, Criminal Division, of Westmoreland County Entered March 17, 1976, at No. 148 January Term, 1976.
William J. Wiker, Greensburg, for appellant.
John A. Mika, Greensburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in this result. Spaeth, J., files a dissenting opinion.
[ 247 Pa. Super. Page 456]
This is an appeal from an order of the court below dismissing a complaint filed under 18 Pa.C.S. § 4323, entitled "Neglect to support bastard."*fn1 We reverse and reinstate the complaint.
On March 18, 1975, the relator instituted criminal proceedings against appellee by a complaint under § 4323 of the Crimes Code. Pursuant to Pa.R.Crim.P. 133(B), the District Magistrate forwarded the complaint to the Westmoreland County District Attorney for approval or disapproval. The complaint was approved on March 24, 1975, and a preliminary hearing was held on April 31, 1975, at which time the charges were held for court. The case was called to trial on September 22, 1975. Prior to the selection of a jury or the swearing of any witnesses, appellee moved to have the charges dismissed based on the Commonwealth's failure to comply with Pa.R.Crim.P. 1100(a)(2), which states:
"Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed."
The trial court granted appellee's motion and dismissed, with prejudice, the charges filed March 18, 1975.
On October 14, 1975, the relator filed a second complaint against appellee under 18 Pa.C.S. § 4323, alleging that appellee was the father of a child born March 4, 1975, and that he willfully neglected or refused to support that child. After a preliminary hearing the case was held for court,
[ 247 Pa. Super. Page 457]
where it was called to trial on March 17, 1976. Before the selection of a jury, the taking of any testimony or the swearing of any witnesses, appellee presented an application for pre-trial relief. Therein, he alleged that he had been brought to trial on the same charge before, that the prior charge had been dismissed with prejudice, and that therefore a second prosecution would be violative of his constitutional right not to be put twice in jeopardy for the same offense.
The trial court held an immediate hearing on this application and found in favor of appellee. It is from that disposition ...