Appeal from the Order of Court of the Superior Court of Pennsylvania at No. 687 Pittsburgh 1982, entered on June 22, 1984 affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on May 27, 1982 at CC No. 8100009, 330 Pa. Super. 594, 478 A.2d 121 (1984).
Kim William Riester, Scott & Vogrin, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, Hutchinson and Papadakos, JJ., concurred in the result.
This is an appeal from an order of the Superior Court which affirmed a judgment of sentence of the Court of Common Pleas of Allegheny County. Commonwealth v. Simms, 330 Pa. Super. 594, 478 A.2d 121 (1984). The appellant, Nathan Simms, was convicted of murder of the first degree, and a sentence of life imprisonment was imposed. The conviction arose from an incident in which appellant stabbed and burned a woman with whom he had been living. On the day of the incident, September 26, 1980, a criminal complaint was filed charging appellant with having committed this aggravated assault. On November 7, 1980, however, the victim of the assault died, and, hence, on November 26, 1980, a complaint was filed charging appellant with criminal homicide.
The sole issue to be addressed*fn1 in the instant appeal is whether appellant was brought to trial within the 180 day period prescribed by Pa.R.Crim.P. 1100, which provides, "Trial in a court case in which a written complaint is filed
against the defendant . . . shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." Pa.R.Crim.P. 1100(a)(2). The courts below held that the final permissible date for commencement of appellant's trial should be calculated from the filing of the second (i.e. criminal homicide) complaint, rather than from the filing of the first (i.e. aggravated assault) complaint. Appellant concedes that if the date of filing of the second complaint is regarded as controlling, trial commenced in a timely fashion. It is argued by appellant, however, that the date of filing of the first complaint marked the beginning of the 180 day period for trial.
The final permissible date for trial to begin, if computed from the date of filing of the initial complaint, was March 25, 1981. On that date, the Commonwealth filed a Petition to Extend the Time for Commencement of Trial, and this petition was granted by the Court of Common Pleas on March 27, 1981. Appellant contests the timeliness of this extension, as well as the basis for this extension, thus raising an issue as to whether trial commenced in a timely fashion if the period for trial is regarded as having commenced with the filing of the first complaint. We believe, however, that the courts below properly determined that the filing of the second complaint, charging appellant with criminal homicide, marked the beginning of the 180 day period for trial on that charge. Thus, a Motion to Dismiss Pursuant to Rule 1100, which was filed by appellant prior to trial, was properly denied.
The keystone of judicial decisions applying Rule 1100 has been a recognition that an abuse of the spirit of that Rule would occur if the Commonwealth were permitted to delay trials by simply, at will, withdrawing or dismissing complaints and filing new ones, thereby beginning anew the 180 day period for commencement of trial. In response to this potential means of evading the intent of Rule 1100, a body of case law has developed which defines the limited ...