No. 1796 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Sect. of Phila, County, as of Information Nos. 277 and 278, Dec. Term, 1975.
Karl Baker, Assistant Defender, Philadelphia, 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. Jacobs, President Judge, and Hoffman, J., concur in the result. Cercone, J., files a concurring opinion. Price, J., files a concurring opinion in which Van der Voort, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 491]
Appellant was convicted of attempted burglary and was sentenced to six to twenty-three months imprisonment. He
[ 256 Pa. Super. Page 492]
now argues that his petition to dismiss the indictment pursuant to Rule 1100(f) of the Pennsylvania Rules of Criminal Procedure should have been granted, and that he should therefore be discharged.
On July 25, 1975, a criminal complaint was filed against appellant, and he was arrested and charged with attempted burglary and possession of an instrument of crime. On July 26 he was arranged, and on July 28 the preliminary hearing was held. At the hearing the charges were dismissed, and appellant was discharged. On August 18 a second criminal complaint, based on the same criminal episode as the first, was filed against appellant. On November 6 was rearrested. This time at the preliminary hearing appellant was held for the grand jury, which later indicted him; trial was set for January 28, 1976. On January 28 appellant received permission from the court to file a petition to dismiss under Rule 1100. The petition was filed the next day.
At the hearing on the petition, on February 3, appellant argued that the 180 day period had started to run with the filing of the first complaint, and that therefore he should have been brought to trial by January 21. The district attorney made no counterargument. The court specifically found that the period started to run on the date of appellant's rearrest; the court further found that the continuance requested by appellant on January 28, when appellant had requested and received permission to file a petition under Rule 1100, represented an excludable period of thirteen days. The court therefore concluded that the run date for commencement of trial was May 17, 1976.*fn1 Accordingly appellant's petition to dismiss was denied.
Appellant had also filed a motion to suppress evidence. On February 10 the motion was denied, and on appellant's request the case was continued to March 23 to allow appellant to bring in a witness. However, on March 23 the case
[ 256 Pa. Super. Page 493]
had to be continued again because appellant had not been brought to court from the prison. On May 3*fn2 trial commenced. Appellant was found not guilty of possession of an instrument of crime but guilty of attempted burglary.
Appellant's counsel orally presented post-verdict motions for a new trial and in arrest of judgment. One of counsel's arguments was that the court had erred in denying the Rule 1100 petition.*fn3 In response, the Commonwealth relied on the court's earlier determination that the 180 day period had started to run on appellant's rearrest. The post-verdict motions were denied, and this appeal followed.
It is beyond argument that the period for trial must be measured from the date on which the written complaint is filed.*fn4 See, e. g., Commonwealth v. Kemp, 245 Pa. Super. 294, 369 A.2d 410 (1976). Appellant argues that here that means, from the date on which the first complaint was filed, not the second.*fn5
In appraising this argument we have found the controlling case to be Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d
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(1976).*fn6 There the Commonwealth was granted permission to file a nolle prosequi two days before the time period prescribed by Rule 1100. Two months later the Commonwealth filed a motion to vacate the nolle prosequi. The defendant joined the Commonwealth's motion, and filed a motion to dismiss alleging that his right ...