No. 280 April Term, 1977, Appeal from the Order dated November 8, 1976, of the Court of Common Pleas of Westmoreland County, Criminal Division at No. 1043 July Term, 1976.
James J. Conte, Assistant District Attorney, Greensburg, for Commonwealth, appellant.
Daniel Joseph, Assistant Public Defender, Greensburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Hoffman, J., concurs in the result. Spaeth, J., files a concurring opinion. Watkins, former, President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 556]
This is an appeal by the Commonwealth from the lower court's order dismissing with prejudice charges against the appellee because of the Commonwealth's alleged violation of Pa.R.Crim.P. 1100(a)(2).*fn1 We reverse.
On September 18, 1975, a complaint was lodged against appellee charging him with possession with intent to deliver and delivery of a controlled substance,*fn2 namely "meteamphetamine." The case was set for trial on March 15, 1976, 179 days after the filing of the complaint. On that day, appellee's counsel requested information concerning an eyewitness from the Commonwealth. The court ordered the prosecution to provide the witness' whereabouts and extended Rule 1100 to March 23, 1976, to allow the Commonwealth to comply. On March 22, appellee filed a motion to quash the indictment for failure to charge a criminal offense because meteamphetamine is not contained in the schedule of prohibited substances. The lower court denied the Commonwealth's
[ 257 Pa. Super. Page 557]
motion to amend the indictment to identify properly the substance as "methamphetamine" and quashed the indictment without prejudice on March 23, 1976. On that same day, the Commonwealth filed a second complaint charging appellee with possession with intent to deliver and delivery of methamphetamine.
On June 1, 1976, appellee filed a motion to dismiss the second complaint for the Commonwealth's failure to comply with Pa.R.Crim.P. 1100. A hearing was held, after which the court below granted the motion. The court reasoned that the 180 day period began to run from the filing of the first complaint.
We find the instant case to be controlled by Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976), wherein we held that Rule 1100 did not begin to run from the filing of the first defective complaint, later dismissed, but rather from the filing of the second complaint. In the instant case, the Commonwealth had from March 23, 1976, to September 20, 1976, to bring appellee to trial. The court below therefore improperly dismissed the charges against appellee.
The order of the lower court is reversed and the case is ...