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filed: August 17, 1979.


No. 2140 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common on Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1231 & 1233 November Term, 1976.


Leonard Sosnov, Elaine DeMasse, Assistant Public Defenders, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Hester and Hoffman, JJ. Hester, J., files a dissenting opinion.

Author: Price

[ 269 Pa. Super. Page 196]

On May 6, 1977, appellant was found guilty after a non-jury trial of possessing an instrument of crime generally*fn1 and simple assault.*fn2 Following denial of post-verdict motions and imposition of sentence, this timely appeal was filed. In addition to alleged insufficiency of the evidence, appellant asserts the Commonwealth's failure to comply with Pa.R.Crim.P. 1100(a)(2),*fn3 which mandates that a defendant be tried on or before the 180th day after a complaint's filing. Because we find appellant's Rule 1100 claim to be meritorious, we vacate the judgment of sentence and order appellant discharged, rendering it unnecessary to address appellant's sufficiency argument.

A written complaint in this case was filed on April 22, 1976. The first date set for the preliminary hearing was April 26, 1976, at which time the defendant failed to appear, and a bench warrant was issued. The warrant was withdrawn on May 3, and bail was set. On May 10, 1976, the complainant failed to appear due to an emergency. A continuance from May 19 to June 9 is not explained on the record. The period from June 9 to June 16 was a continuance because of defense counsel's inability to attend. Finally, on June 16, 1976, the prosecution was dismissed because the complaining witness did not appear.

[ 269 Pa. Super. Page 197]

A second complaint charging the same crimes and arising from the same incident was filed on October 28, 1976. Subject thereto, appellant was rearrested on November 4, 1976, and a preliminary hearing followed on November 10, 1976. On November 29, 1976, a written motion to dismiss under Rule 1100(f) was filed. That motion was denied by Judge Blake on December 14, 1976, when he ruled that for Rule 1100 purposes, time would be calculated from the date of the filing of the second complaint. In conjunction therewith, Judge Blake extended the run date to May 2, 1977, (180 days after the second complaint's filing would have lapsed on April 26, 1977) due to the dismissal of the original charges and the second complaint.*fn4 In fact, appellant was not tried until May 6, 1977.

It is appellant's position that the Commonwealth could have pursued his conviction under the first complaint, in spite of the complaining witness's failure to appear. Ultimately, that witness's testimony was not relied upon at the second preliminary hearing or at trial. Appellant thus argues that Rule 1100 should be calculated from the first

[ 269 Pa. Super. Page 198]

    complaint's filing and that he is therefore entitled to discharge.

In Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976), a complaint was filed charging the appellant with fornication and bastardy. Because the complainant's signature did not appear on the appellant's copy of the complaint, the lower court dismissed the case at the preliminary hearing stage. Although under Pa.R.Crim.P. 150 the complaint could have been amended and the appellant's discharge avoided if the court deemed the defect an informal one, the appellant's acquiescence in dismissal when the lower court sub silentio rendered the defect substantive, caused us to hold the dismissal proper. This court stressed a second area of concern when we said, "Moreover, the record does not reflect any impropriety by the district attorney's office in this case to avoid the mandate of Rule 1100." Commonwealth v. Mumich, supra, 239 Pa. Super. at 212, 361 A.2d at 361. We therefore ruled in Mumich that the Commonwealth was required to try the appellant on or before the 180th day following the filing of the second complaint.

Subsequent to the Mumich case, we have several times treated this issue and reaffirmed the Mumich criteria. When determining whether a first or second complaint controls the Rule 1100 calculation, we are mindful of two considerations: (1) was the first complaint properly dismissed; and (2) does the record reveal an intent by the prosecution to evade the Rule. Commonwealth v. Weitkamp, 255 Pa. Super. 305, 386 A.2d 1014 (1978); Commonwealth v. Braithwaite, 253 Pa. Super. 447, 385 A.2d 423 (1978). Applying these criteria in the instant case, we find that the dismissal was not proper, and that the Commonwealth's effort to evade Rule 1100 is apparent on the record.

According to the record in this case, the Commonwealth's alleged inability to present a case against appellant at the preliminary hearing, in the absence of the complaining witness, was the cause for the first complaint's dismissal fifty-five days after it was filed. Only after the passage of

[ 269 Pa. Super. Page 199]

    an additional one hundred thirty-four days did the Commonwealth file the second complaint. The Commonwealth did not present the complaining witness's testimony at the preliminary hearing or at trial. Nor was any explanation offered for its failure to do so. Clearly, the prosecution was not hindered by the absence of that testimony, since the testimony of the arresting officers that it did present was sufficient to hold appellant over for court and to convict him. Under the circumstances here presented, there appearing no explanation for the Commonwealth's failure to bring forth later the "crucial" witness, and there appearing no explanation for the Commonwealth's failure to pursue the case until the 189th day after the first complaint was filed by lodging a second one, we find that the record demonstrates the Commonwealth's obvious intent to circumvent the Rule. Accordingly, we calculate the Rule 1100 run date from the first complaint's filing date.

Absent any Commonwealth extensions under Pa.R.Crim.P. 1100(c) or any exclusions under Pa.R.Crim.P. 1100(d) due to appellant's unavailability, the Commonwealth was thus required to try appellant on or before October 19, 1976. There were no Commonwealth extensions. Further, even assuming for purposes of this discussion that appellant should be charged with two periods of continuance in the conduct of the first preliminary hearing because of his failure to appear -- seven days -- and his counsel's unavailability -- seven days -- appellant was entitled to discharge when he requested it on ...

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