No. 888 April Term, 1978, Appeal from Order of the Court of Common Pleas of Mercer County, Criminal Division, at No. 497 Criminal 1977
Samuel J. Orr, IV, District Attorney, and with him, David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellant.
Charles F. Gilchrest, Sharon, for appellee.
Cercone, President Judge, and Spaeth and Lipez, JJ.
[ 266 Pa. Super. Page 337]
The Commonwealth appeals the order of the lower court arresting judgment on the charge of burglary*fn1 against the appellee, Gary Douglas Brocklehurst, based on a violation of his Rule 1100*fn2 rights. We reverse the order of the lower court and reinstate the conviction for burglary entered at the non-jury trial.
On June 22, 1977, a criminal complaint was filed against Gary Paul Brocklehurst, charging him with a house burglary and related offenses that had occurred in 1975. Police received information implicating Gary Brocklehurst from informants and co-conspirators in the crime. Although the wrong Gary Brocklehurst was named in the complaint, Gary Douglas Brocklehurst was arrested on July 30, 1977. Once Gary Douglas Brocklehurst was in custody, the police realized they had not only mistaken Gary's middle name on the face of the complaint, but they had also stated the wrong address, birthdate and social security number.
Realizing their mistakes, the police attempted to amend the complaint at the preliminary hearing on August 9, 1977. Defense counsel objected, claiming the misidentification was a substantive defect and that the statute of limitations had run on all the offenses except burglary. The police withdrew the complaint of June 22, 1977, re-arrested appellee
[ 266 Pa. Super. Page 338]
and filed a new complaint charging him only with the burglary offense.
Trial began on December 27, 1977. Prior to that date, defense counsel filed a petition to dismiss under Pa.R.Crim.P. 1100(f) alleging that the 180-day period from the filing of the first complaint had expired on December 19, 1977 and, therefore, appellee's right to a speedy trial had been violated. The petition was denied and the non-jury trial proceeded wherein appellant was found guilty. Following post-trial motions, the lower court judge reversed his prior ruling and dismissed the case, holding that the 180-day period ran from the filing of the first complaint and not from the filing of the second.
Our cases have held that the 180 day period begins to run anew with the filing of a subsequent complaint, provided the first complaint was properly dismissed and the record does not disclose evidence of prosecutorial misconduct to circumvent Rule 1100. Commonwealth v. Lowe, 255 Pa. Super. 78, 386 A.2d 144 (1978); Commonwealth v. Braithwaite, 253 Pa. Super. 467, 385 A.2d 423 (1978); Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976).
In addressing the first prong of this test, there is no question that the original complaint was properly ...