No. 921 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, Criminal Division at No. 5913 of December Sessions 1977, per de Furia, J.
D. Michael Emuryan, Assistant District Attorney, Chief, Appeals Div., Media, for Commonwealth, appellant.
Robert F. Pappano, Assistant Public Defender, Media, for appellee.
Cercone, President Judge, and Spaeth and Lipez, JJ. Cercone, President Judge, dissents.
[ 264 Pa. Super. Page 207]
This is an appeal by the Commonwealth from the order of the court below dismissing charges against appellee because of the Commonwealth's alleged failure to comply with Rule 1100(a)(2).*fn1 We vacate the lower court's order and remand the cause for proceedings not inconsistent with this opinion.
[ 264 Pa. Super. Page 208]
A complaint charging appellee with rape and various related offenses arising out of the same criminal act was filed May 28, 1977. Appellee was arrested for the first time concerning this matter on June 10, 1977. A preliminary hearing before a District Justice was held, according to the Opinion of the court below, on June 20, 1977; the Commonwealth and appellee claim in their briefs that the date of the preliminary hearing was June 27, 1977. This discrepancy, while not material to our resolution of this case, serves to point up the fact that the record of the first preliminary hearing was not before the court below. At that first hearing, the proceedings against appellee were terminated either by withdrawal of charges by the Commonwealth, or by dismissal of the complaint. The Commonwealth argues one, the appellee the other, and the lower court's Opinion declares that "[w]hether the Defendant was discharged or charges withdrawn is immaterial for our purposes." A second complaint, charging substantially the same crimes, was filed September 26, 1977, and appellee was arrested pursuant thereto October 16, 1977. Appellee was bound over for trial at a preliminary hearing held November 23, 1977. On January 10, 1978, a hearing was held on Appellee's Motion to Dismiss for violation of Rule 1100(a)(2). The court below held that the 180 day period of Rule 1100 must commence to run the day the first complaint is filed, regardless of the disposition thereof, and dismissed all charges on the grounds that 215 days had passed between the filing of the first complaint and appellee's Rule 1100 motion.
With respect to the court below, in light of our holding in Com. v. Braithwaite, 253 Pa. Super. 447, 385 A.2d 423 (1978), allocatur denied, July 21, 1978, petition for reconsideration denied, September 15, 1978, and see Com. v. Weitkamp, 255 Pa. Super. 305, 386 A.2d 1014, 1032-33, (allocatur denied July 20, 1978), which cases had not yet been filed on the date of appellee's Rule 1100 hearing, resolution of the question whether charges were dismissed or withdrawn is absolutely indispensable to a correct decision in this
[ 264 Pa. Super. Page 209]
case. If the first complaint were withdrawn by the prosecution at the first preliminary hearing, Com. v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976) would control. In Whitaker, the Supreme Court of Pennsylvania held that the entry of a nolle prosequi on the motion of a district attorney does not toll the running of the Rule 1100 period. The Supreme Court concluded that "the prosecution's motion for a nolle prosequi*fn2 pursuant to Rule 314 was simply an effort to gain an extension of the time period during which it was required to bring appellee to trial." Id. 467 Pa. at 443, 359 A.2d at 177. See Com. v. Braithwaite, 253 Pa. Super. 447, 450 n.2, 385 A.2d 423, 425 n.2. The court held that, in such a situation, the Rule 1100 period would be counted from the filing of the first (that is, in that case, the withdrawn) complaint. On the facts of the instant case, if, and only if, the first complaint was in fact withdrawn by the prosecution, Braithwaite and Whitaker would require that the 180 day period begin on May 28, 1977, the date of filing of that complaint. Since appellee was not brought to trial within 180 days of the filing of the first complaint, the charges would be dismissed. But if the first complaint was properly dismissed by the District Justice,*fn3 the two-pronged test enunciated in Braithwaite must be applied. This test has been stated as follows:
[T]he prompt trial period would attach from the date of the second complaint only if (1) the first complaint was properly dismissed and ...