No. 496 January Term, 1979, Appeal from the Order of the Superior Court at No. 2140 October Term, 1977, reversing Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1231 and 1233 November Term, 1976,
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., filed a dissenting opinion.
The Commonwealth appeals from an order of the Superior Court, 269 Pa. Super. 194, 409 A.2d 431, which discharged appellee Michael Leatherbury, who had been convicted of simple assault and possession of an instrument of crime. The Superior Court granted relief on the ground that the Commonwealth had failed to bring appellee to trial within 180 days as mandated by Pa.R.Crim.Proc. 1100. Because the record establishes that the requirements of Rule 1100 have been satisfied we vacate the order of the Superior Court and remand the record to the Superior Court for consideration of appellee's remaining claim of error.
The record establishes that on April 22, 1976, a written complaint was filed against appellee charging him with robbery, possession of an instrument of crime (generally), possession of a concealed weapon, simple assault, and criminal conspiracy. On April 26, appellee failed to appear at a preliminary hearing on the charges, and a bench warrant for appellee's arrest was issued. On May 3, the bench warrant was withdrawn and a new date for the preliminary hearing was scheduled. At two subsequently scheduled preliminary hearings the complaining witness failed to appear. On June
, when the complaining witness failed to appear for a third time, the Commonwealth requested a continuance. Upon appellee's motion, the court discharged appellee, subject to rearrest.*fn*
On October 28, 1976, the Commonwealth filed a second complaint against appellee charging him with the same crimes that had been charged in the first complaint. Appellee was rearrested on the basis of this second complaint on November 4, and a preliminary hearing was held on November 10, at which the complaining witness did not appear. Appellee was bound over for trial on the basis of the testimony of one of two police officers who claimed to have witnessed the alleged offenses.
On February 1, 1977, the Court of Common Pleas of Philadelphia ordered appellee to undergo a psychiatric examination in order to determine his competency to stand trial. See Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, § 402, 50 P.S. § 7402 (Supp. 1982). On February 7, appellee was examined by a court-appointed psychiatrist and determined to be incompetent to stand trial because of his inability to assist in the preparation of his defense. On February 22, the court ordered a second examination, which indicated that appellee had regained the ability to assist in the preparation of his defense. A final determination was entered on May 5, 1977, when the court concluded that appellee was competent to stand trial. A non-jury trial commenced the next day, at which the Commonwealth proceeded solely on the basis of the testimony of the second police officer who had witnessed the alleged offenses. Appellee was found guilty of simple assault and possession of an instrument of crime, and acquitted of all other charges.
In discharging appellee, the Superior Court held that Rule 1100 was not tolled during the period between the dismissal of the first complaint and the filing of the second complaint,
on the theory that the Commonwealth had attempted to evade the requirements of Rule 1100 by failing to proceed to a preliminary hearing on the first complaint. Since the Superior Court's decision in the present case, this Court has held that Rule 1100 should be tolled between the dismissal of a first complaint and the filing of a second complaint, except where "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). Accord, Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982). Because the charges contained in the first complaint were dismissed, the period between the dismissal and the filing of the second complaint is properly excluded under Rule 1100. With this exclusion, it is clear that appellee was tried in compliance with the Rule.
Order of the Superior Court vacated, and record remanded to the Superior Court for proceedings ...