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decided: July 12, 1978.


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.

Author: Spaeth

[ 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

[ 256 Pa. Super. Page 494174]

(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 to a speedy trial under Rule 1100 had been violated. The Commonwealth argued that

[ 256 Pa. Super. Page 495]

    the entry of a nolle prosequi on motion of the district attorney and with approval of the court tolls the running of the . . . time period specified by Rule 1100 so long as no violation of a defendant's right to a speedy trial, as that right is defined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 . . . (1972) has occurred, and so long as relevant statutes of limitations have not expired. Id. at 439, 359 A.2d at 175.

The Supreme Court explicitly declined to adopt this reasoning:

The test mandated by Rule 1100 is the only test to be applied in Pennsylvania to determine a speedy trial claim. It was not meant to be applied in addition to Barker's "balancing test." It represents this Court's determination that the "balancing test" . . . provides only the "minimum standards guaranteed by the Sixth and Fourteenth Amendments," and that such minimum standards are not adequate to provide Pennsylvania criminal defendants the protection guaranteed by the Constitution of this Commonwealth. See Pa.Const. Art. I, Sec. 9. Id., 467 Pa. at 442, 359 A.2d at 176.

In conclusion the Court stated:

Stripped of its Latin label, the prosecution's motion for a nolle prosequi. . . was simply an effort to gain an extension of the time period during which it was required to bring [the defendant] to trial. This they attempted to do without complying with Rule 1100(c). . . . The consequence of violation of Rule 1100 is discharge. Only in this way can the accused's right to a speedy trial be effectively protected. Id., 467 Pa. at 443, 359 A.2d at 177.

Similarly we hold that here the Commonwealth could not extend the period for trial by filing the second complaint. At appellant's first preliminary hearing the charges were dismissed because the hearing judge found that the hearing had been scheduled less than three days

[ 256 Pa. Super. Page 496]

    after the preliminary arraignment. Pa.R.Crim.P. 140(f)(1).*fn7 Evidently the Commonwealth did not seek a continuance pursuant to Rule 142, which provides that "[t]he issuing authority may, for cause shown, grant a continuance . . ." Instead the Commonwealth filed a second complaint. Whether the Commonwealth's failure to seek a continuance was an oversight, or a reasoned tactical maneuver as in Whitaker, does not matter. It is clear from Whitaker that in determining whether there has been a violation of the defendant's right to a speedy trial, "[t]he test mandated by Rule 1100 is the only test to be applied." Id., 467 Pa. at 442, 359 A.2d at 176. Thus the Commonwealth's motive is immaterial. Here appellant was subjected to the same harm as was the defendant in Whitaker -- an extended period within which he could be prosecuted.

Accordingly, in ruling on appellant's Rule 1100 claim, we must proceed from the premise that the period for trial is to be measured from the date on which the first complaint was filed.


To recall the facts: The first complaint was filed on July 25, 1975. Appellant should therefore have been brought to trial within 180 days, that is, by January 21, 1976. Instead, trial was set for January 28.

[ 256 Pa. Super. Page 497]

In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), our Supreme Court stated that all delay beyond the mandatory period "'. . . must either be excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)], if the Commonwealth is to prevail.'" Id., 469 Pa. at 14, 364 A.2d at 697, quoting Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976). Here, at no time did the Commonwealth file a petition requesting an extension of time. Pa.R.Crim.P. 1100(c). Therefore, in order to find that appellant's petition to dismiss was properly denied it must appear that there was sufficient delay excludable under paragraph (d) of the Rule, which provides:

In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

(1) the unavailability of the defendant or his attorney;

(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

Since no continuance in excess of 30 days was granted at the request of appellant, no exclusion is possible under subparagraph (d)(2). We must therefore consider whether appellant was unavailable within the meaning of subparagraph (d)(1).

The comment to Rule 1100 states:

For purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence. . . (Emphasis added.)

The second complaint was filed on August 18. However, appellant was not rearrested until November 6. The record does not explain this 80 day delay. Appellant asserted at

[ 256 Pa. Super. Page 498]

    oral argument on post-verdict motions, N.T. May 3, 1976, 13-15, and states in his brief that:

During [this] interval . . . the appellant either remained at his Philadelphia address or was in the custody of the Commonwealth on a separate charge. Appellant's Brief at 12.

It is unnecessary for us to appraise the accuracy of this assertion. At the hearing on appellant's Rule 1100(f) petition the Commonwealth did not claim that appellant had been unavailable, but rather offered no argument. See Appellee's Brief Exhibit (copy of Notes of Testimony from Rule 1100(f) hearing.)*fn8 Further, the Commonwealth did not respond to appellant's assertion of availability at oral argument on post-verdict motions, N.T., May 3, 1976, 15, or in its reply brief in this appeal, Appellee's Brief at 5-7. Thus at every juncture in this proceeding the Commonwealth has exclusively relied on the date of rearrest as the starting point of the period for trial. In Commonwealth v. Shelton, supra, the court stated:

Whether or not circumstances exist in any given case which warrant excluding certain periods of time pursuant to section (d) is to be determined when an accused applies for dismissal of the charges because of an alleged violation of the Rule pursuant to section (f). Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872, 875 n. 9 (1976). Id., 469 Pa. at 15, 364 A.2d at 697 (emphasis added).

Thus the Commonwealth's failure to address the issue makes it unnecessary for us to decide whether appellant was unavailable during the 80 day period between July 25 and August 18 despite the Commonwealth's due diligence.*fn9

[ 256 Pa. Super. Page 499]

Therefore there is no period excludable from the mandatory period of Rule 1100 under subparagraph (d)(1).

Our recent decision in Commonwealth v. Dandy, 252 Pa. Super. 387, 381 A.2d 972 (1977), is in accord. In Dandy the Commonwealth asserted that two periods of delay, one of thirty-six days and one of thirty-four days, should be excluded from the 180 day period because they were attributable to the defendant. We rejected this argument:

While under Section (d) of the Rule, various time periods may be excluded from the 180 day period, if due to the unavailability of the defendant or his counsel or if due to defense continuances in excess of thirty days, such exclusions are not proper in the instant case for two reasons. First, the Commonwealth never argued defense caused delays in the argument before the lower court on appellant's Rule 1100 motion. Rather, the Commonwealth only noted that there had been delays . . . Second, the Commonwealth's contention must fail because the record provides no support for the claim that some seventy days of delay are attributable to appellant and should be excluded from the running of the time limit under the Rule. 252 Pa. at 391, 381 A.2d at 974.

See Commonwealth v. Jones, 250 Pa. Super. 98, 102, 378 A.2d 471, 474 (1977).

Since none of the exceptions to the mandatory period for commencing trial under Rule 1100 applies here, appellant should have been brought to trial by January 21, 1976. Thus, on January 28, when appellant received permission to file a Rule 1100(f) petition requesting dismissal, the period for trial had already expired. Accordingly, at the subsequent hearing on the petition, appellant was entitled to be discharged.*fn10

[ 256 Pa. Super. Page 500]

The judgment of sentence is reversed and appellant is discharged.

CERCONE, Judge, concurring:

I reluctantly concur in the result reached by the majority in the instant case because recent decisions of the Supreme Court leave no room for disagreement with the majority's disposition of this case. When Commonwealth v. Whitaker*fn1 and Commonwealth v. Earp*fn2 are read together they virtually compel the conclusion the majority has reached. Were we writing on a clean slate, however, in my estimation a due process analysis should be applied to situations where the accused seeks to charge the Commonwealth with responsibility for delays in prosecution occurring when no formal charges are pending. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). However, I agree with the majority's disposition of this case because a due process analysis no longer seems open to us.

[ 256 Pa. Super. Page 501]

PRICE, Judge, concurring:

In Part I of its opinion, the majority determines that the period of time prescribed by Rule 1100 for trial commencement must be measured from the filing date of the first complaint against the appellant. In Part II of its opinion, the majority determines that if the mandatory period is measured from the filing date of the first complaint, then appellant's right to a speedy trial was violated and he must be discharged. Although I agree with Part II in its entirety and the conclusion of Part I, I cannot accede to the rationale employed by the majority in Part I.

In Commonwealth v. Braithwaite, 253 Pa. Super. 447, 385 A.2d 423 (1978), this court, citing Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976), enunciated a standard by which we would examine Rule 1100 claims in cases, such as the instant case, where all of the charges arising from a criminal transaction have been dismissed and then later revived in whole or in part.*fn1 See also Commonwealth v. Lowe, 255 Pa. Super. 78, 386 A.2d 144 (1978). We stated that ". . . the prompt trial period would attach from the date of [a] second complaint only if (1) the first complaint was properly dismissed and (2) the record fails to reflect an improper prosecutorial design to circumvent the mandate of Rule 1100." Commonwealth v. Braithwaite, supra 253 Pa. Super. at 450, 385 A.2d at 424. Despite our holdings in Braithwaite and Mumich, the majority asserts that ". . . the Commonwealth's motive is immaterial" to an analysis of the appellant's claim. I see no reason to

[ 256 Pa. Super. Page 502]

    eschew the standard pronounced by this court in Braithwaite and would use that standard to resolve appellant's claim.

When the appellant's claim is analyzed in light of the guidelines established in Braithwaite, it is apparent, under the circumstances of this case, that the period of time for trial must be measured from the date of the first complaint. Although the record does not demonstrate a prosecutorial intent to evade the mandate of the Rule, the record does indicate that the hearing judge improperly dismissed the first complaint against the appellant.

At the appellant's first preliminary hearing, the hearing judge dismissed the charges against the appellant because the preliminary hearing had been scheduled on the second day after the preliminary arraignment.*fn2 Under Pa.R.Crim.P. 140(f)(1), a preliminary hearing shall not be less than three days nor more than ten days after the preliminary arraignment.*fn3 Although a technical violation of Rule 140(f)(1) did occur in the instant case, the Pennsylvania Supreme Court, in Commonwealth v. Hailey, 470 Pa. 488, 509, 368 A.2d 1261, 1272 (1977), has ruled that unless an accused is able ". . . to demonstrate a causal connection between any prejudicial event and the alleged irregularity" then the remedy of dismissal is inappropriate if the hearing substantially complied with the requirements of Rule 140(f). In the instant case, the appellant's preliminary hearing was scheduled one day too soon under Rule 140(f). Certainly, despite such an irregularity, the appellant's hearing substantially complied with Rule 140(f), particularly since "Rule 140(f) was primarily designed to prevent prolonged

[ 256 Pa. Super. Page 503]

    custody of an accused prior to an independent judicial finding of the existence of probable cause." Commonwealth v. Hailey, supra at 506, 368 A.2d at 1270. Moreover, neither party indicates that the defense was prejudiced in any way by the irregularity. Under these circumstances, it is clear that the hearing judge improperly dismissed the first complaint against the appellant. Since the complaint against the appellant was improperly dismissed, the proceedings on the charges contained in that complaint were never terminated for the purpose of Rule 1100. Therefore, because I agree with the majority that the appellant's Rule 1100 right to a speedy trial was violated if the mandatory period is measured from the filing date of the first complaint, I would reverse the judgment of sentence and discharge the appellant.

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