John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Ann C. Lebowitz, Asst. Dist. Attys., Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
This case involves our 180-day rule, Pa.R.Crim.Proc. 1100. On October 18, 1977, a written complaint was filed against appellant Linda Navarro charging her with assault. Thirty-four days later, on November 21, 1977, the Commonwealth withdrew the charges because of the death of the victim, a death unrelated to the alleged assault. On March 16, 1978, 115 days after the Commonwealth's withdrawal of the charges, a second written complaint was filed against appellant for the assault, although no new evidence had been gathered since the withdrawal of the charges. Trial was commenced on August 9, 1978, 146 days after the second complaint had been filed. Appellant was found guilty of aggravated and simple assault on the basis of the testimony
of persons to whom the victim had spoken after the offense had occurred.*fn1
Appellant maintains that the period of 115 days between the withdrawal of charges and the filing of the second complaint was chargeable to the Commonwealth under Rule 1100, and that her motion to dismiss the charges (filed on May 1, 1978, 195 days after the institution of criminal proceedings) should thus have been granted. In support of her contention, appellant relies on Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976), in which this Court held that the entry of a nolle prosequi by the Commonwealth did not operate to toll the speedy-trial period.
This Court has limited Whitaker to those cases in which "there is an obvious attempt to evade the requirements of Rule 1100(c) [(governing applications of the Commonwealth for extensions of time)] through the use of the nolle prosequi procedure." Commonwealth v. Johnson, 487 Pa. 197, 204, 409 A.2d 308, 311 (1979). Thus in Johnson it was held that the speedy trial period was tolled from the date that one grand jury had refused to return an indictment to the date that a subsequent grand jury had approved the bill. "At that point [(the point at which the first grand jury refused to indict)] the charges against [the accused] were effectively terminated . . . ." 487 Pa. at 203, 409 A.2d at 311.
Here, as in Johnson, it must be concluded that the Commonwealth's withdrawal of the assault charges against appellant effectively terminated those charges. Accordingly, the 180-day period was tolled on the date of withdrawal, November 21, 1977, thirty-four days after the prosecution had been commenced. As appellant was tried 146 days ...