No. 52 Harrisburg 1983, Appeal from the Judgment' of Sentence of the Court of Common Pleas, Criminal Division, of Adams County at No. CC-154-82.
John D. Kuhn, Gettysburg, for appellant.
Roy Alan Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
Wickersham, Olszewski and Hoffman, JJ.
[ 330 Pa. Super. Page 137]
The sole issue presented in this appeal is whether the calculation of 180 days under Pa.R.Crim.P. No. 1100 should commence with the filing of the first criminal complaint, rather than with the filing of the second complaint as determined by the lower court.
The circumstances pertinent to this issue were outlined by the parties in an "Agreed Statement of Record." On March 2, 1982, Officer Brian Kluck filed a criminal complaint against appellant, Thomas Knox, charging appellant with driving under the influence,*fn1 and driving on the right side of the roadway.*fn2 A preliminary hearing was scheduled for March 30, 1982 in the office of Magistrate Donald Weaver. Appellant appeared at the hearing without counsel. Officer Kluck, however, failed to appear, request a continuance, or make any contact with the magistrate regarding his whereabouts. Magistrate Weaver dismissed the complaint because of Officer Kluck's failure to appear.
[ 330 Pa. Super. Page 138]
On June 11, 1982, Officer Kluck filed a second complaint against appellant, charging him with driving under the influence. This charge arose out of the same incident as that cited in the first complaint.
On September 16, 1982, appellant filed an application for dismissal pursuant to Pa.R.Crim.P. No. 1100, alleging that the 180 day period should have commenced on March 2, 1982 (the date of the filing of the first complaint), and expired on August 29, 1982. By stipulation entered October 4, 1982, it was agreed that Officer Kluck would have testified that he failed to appear at the first preliminary hearing because he was investigating a report that someone was shooting dogs in his jurisdiction. He further stated that the delay in filing the second complaint was occasioned because he filed the case away and forgot about it until shortly before June 11, 1982. On October 6, 1982, the lower court denied appellant's application for dismissal.
On October 8, 1982, appellant was found guilty of driving under the influence after a non-jury trial. Post-trial motions were filed and subsequently denied. On January 17, 1983, appellant was placed on supervised probation for a period of one year and was ordered to pay a fine of $500.00. This appeal timely followed.
Appellant argues that the lower court erred in refusing to dismiss the complaint pursuant to Rule 1100. Specifically, appellant contends that the 180 day period should have been computed from the filing of the first complaint rather than from the filing of the second.*fn3
It is well settled that the 180-day period shall start running from the filing of the second complaint only if the following ...