John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Hoffman and Spaeth, JJ., concur in the result.
[ 254 Pa. Super. Page 153]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Reginald Lewis, after conviction in a non-jury trial of possession and delivery of a controlled substance; and from the denial of post-trial motions.
The criminal complaint was filed on January 17, 1975. He was not arrested until May 16, 1975. On December 16, 1975, the defendant filed a petition for the dismissal of the charges against him for the failure of the Commonwealth to comply with the mandates of Pa.R.Crim.P. 1100. This was denied. He was tried and convicted non jury on January 12, 1976.
There is no question that the 180 day rule was violated unless we accept the interpretation of the rule made by the court below.
Rule 1100(a)(2) provides:
"Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than 180 days from the date in which the complaint was filed."
The rule is clear and unambiguous and in fact, in all our cases dealing with Rule 1100 our computation of the 180 day rule requirement began with the filing of the complaint.
In Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976) stands for the proposition that the period begins
[ 254 Pa. Super. Page 154]
at the time of the filing of a proper complaint. There is no contention in the instant case that the complaint was not proper. In Mumich this Court held that where a first complaint was dismissed, as improper, the time begins to run at the filing of a second proper complaint. See, Commonwealth v. Bean, 244 Pa. Super. ...