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filed: May 17, 1985.


Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC8208209.


Dara A. Decourcy, Assistant District Attorney, Pittsburgh, for Com., appellant.

David J. Greenberg, Pittsburgh, for appellee.

Brosky, Watkins and Hester, JJ.

Author: Brosky

[ 342 Pa. Super. Page 320]

This is an appeal from an order entered granting appellee's motion to dismiss. Appellant contends that the trial court erred in dismissing a charge of vehicular homicide brought against appellee, because appellant violated Pa.R.Crim.P. 1100 and 18 Pa.C.S. § 110. We agree with appellant and, accordingly, reverse the order of the trial court and remand the case for trial.

On June 14, 1981, a criminal complaint was filed charging that appellee, Edward P. Davies, operated a motor vehicle

[ 342 Pa. Super. Page 321]

    while under the influence of alcohol.*fn1 Appellee was the driver of a van which struck a pedestrian, Michael McDonough.

On June 17, 1981, Mr. McDonough died from the injuries that he had received. On June 20, 1981, a second criminal complaint was filed, charging appellee with homicide by vehicle.*fn2

On July 1, 1981, a preliminary hearing was held on both complaints. The magistrate dismissed the charge of homicide by vehicle for the Commonwealth's failure to state a prima facie case and held the appellee for court on the charge of driving under the influence.

An information was then filed charging appellee with driving under the influence, and the case was listed for trial. The District Attorney subsequently recommended appellee for placement in the Accelerated Rehabilitative Disposition program (A.R.D.). The court approved a one year probation for appellee and other related penalties. All of the conditions of the A.R.D. program were successfully completed by appellee on October 31, 1982.

On October 2, 1982, a new Criminal Complaint was filed charging appellee with the summary offense of driving at an unsafe speed*fn3 and homicide by vehicle. This filing was based upon new evidence volunteered to the Commonwealth by witnesses to the incident. These witnesses informed the police of their knowledge in September of 1982.

On October 21, 1982, the appellee was charged by information with homicide by vehicle. Counsel for appellee, on November 17, 1982, filed an omnibus motion in which he sought dismissal of the criminal information, alleging that by calculating the period of the rule from the filing of the first complaint on June 14, 1981, Rule 1100 had been violated. Appellee further alleged that prosecution was barred based upon 18 Pa.C.S. § 110.

[ 342 Pa. Super. Page 322]

On November 24, 1982, a hearing was held on appellee's motion. On that date, the court granted the petition, finding violations of both Rule 1100 and 18 Pa.C.S. § 110. The trial court's rationale for rendering this decision was that the Commonwealth was not diligent in its investigation and that it intentionally failed to summon known witnesses in an attempt to circumvent Rule 1100. The Commonwealth timely filed this appeal from the order dated November 24, 1982.

Appellant argues that the lower court erred in dismissing the complaint pursuant to Rule 1100, and that the proper method of computation of the 180-day period of Rule 1100 was to begin calculating the time from the filing of the second complaint. A substantial number of cases dealing with the effect of Rule 1100 in a first complaint/second complaint solution have generally applied the " Mumich-Braithwaite " test, reflecting the holdings of Commonwealth v. Mumich, 239 Pa. Super. 209, 361 A.2d 359 (1976) and Commonwealth v. Braithwaite, 253 Pa. Super. 447, 385 A.2d 423 (1978). The rule promulgated in these cases was that the 180-day period would begin to run again upon the filing of a subsequent complaint providing that two prerequisites were met: (1) the first complaint had been properly dismissed, and (2) the record did not disclose evidence on the part of the Commonwealth to circumvent Rule 1100.

The case which has been cited as first modifying this test is Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). In Johnson, a complaint was filed and the matter was presented to a grand jury which dismissed the indictment for lack of evidence. After procuring additional evidence the Commonwealth re-presented the matter to a new grand jury which approved the indictment. The Supreme Court held that in such a situation the period between the two indictments should be tolled for purposes of Rule 1100, i.e., that the period of time between the two indictments would be excluded from the calculation of the Rule 1100 period. However, the Supreme Court, in the case of Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981),

[ 342 Pa. Super. Page 323]

    recognized that Johnson did not involve a first complaint/second complaint situation. In Genovese, a district justice dismissed the first complaint for lack of a prima facie case. Upon the filing of a second complaint a second district justice held the case for trial. The Genovese court refused to extend the Johnson "tolling" approach to the first complaint/second complaint situation and reaffirmed the viability of the " Mumich-Braithwaite " standard.

However, in Commonwealth v. Navarro, 499 Pa. 279, 453 A.2d 308 (1982), and Commonwealth v. Leatherbury, 499 Pa. 450, 453 A.2d 957 (1982) the Supreme Court, in two short opinions, calculated the Rule 1100 period in a first complaint/second complaint situation by use of the Johnson "tolling" rationale. In other words, it began calculating the Rule 1100 period from the filing of the first complaint but excluded the time between the dismissal of that complaint and the filing of the second complaint.

A comparison of the Johnson "tolling" rationale and the "Mumich-Braithwaite" test indicates that, under either approach, two prerequisites must be met: that the first complaint has been properly dismissed, and that the record reveals no evidence that the Commonwealth attempted to circumvent Rule 1100. Thus, the only practical difference between the two approaches is whether the time between the filing of the first complaint and the dismissal of that complaint is included in the calculation of the Rule 1100 period.

In both Navarro and Leatherbury the same result would have resulted through the use of either the Johnson approach or the " Mumich-Braithwaite " test. Additionally, we note that nowhere in Navarro or Leatherbury does the court expressly overrule its holding in Genovese.*fn4 While it would seem that under these circumstances Genovese thus still governs the method of calculating the Rule 1100 period where the prerequisites discussed above have been met, we

[ 342 Pa. Super. Page 324]

    need not decide this issue, for, in the instant case, the same result would be obtained by use of either the Johnson or the " Mumich-Braithwaite " method of calculation. Under either method the Rule 1100 period would not have been exceeded by the Commonwealth.

The first prerequisite of " Mumich-Braithwaite " is that the first complaint was properly dismissed. "[O]ur Court . . . has interpreted '"[p]roper dismissal" . . . to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. This would include, we think, dismissal for failure to make out a prima facie case'. Commonwealth v. Ardolino, supra [304 Pa. Super. 268] at 276, 450 A.2d [674] at 679, quoting Commonwealth v. Brennan, supra [264 Pa. Super. 206] at 210, 399 A.2d [739] at 741." Commonwealth v. McClain, 325 Pa. Super. 29, 31, 472 A.2d 630, 631 (1984).

Instantly, while a prima facie case of driving under the influence was established at the preliminary hearing on the first complaint, the statements of the witnesses did not suggest the presence of the causal connection between that motor vehicle code violation and the victim's death necessary to establish a prima facie case of homicide by vehicle. Thus, we find that that charge was properly dismissed.

The second prerequisite is that the record discloses no evidence on the part of the Commonwealth to circumvent Rule 1100.*fn5 The Commonwealth contends that its failure to

[ 342 Pa. Super. Page 325]

    prove a prima facie case of homicide by vehicle did not reflect an intention to circumvent Rule 1100, but was simply the result of the fact that its interviews with the witnesses did not produce evidence of a causal connection between the offense of driving under the influence and the victim's death or any evidence that the van was traveling at an unsafe speed. It argues that it later received new evidence from two witnesses that suggested that appellee was traveling at an excessive rate of speed and that the victim was not able to avoid the impact. The Commonwealth also notes that, after the dismissal of the homicide by vehicle charge, the record discloses that ...

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