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COMMONWEALTH PENNSYLVANIA v. GLENN WHITING (11/22/85)

decided: November 22, 1985.

COMMONWEALTH OF PENNSYLVANIA,
v.
GLENN WHITING, APPELLANT



Appeal from the Judgment of the Superior Court of Pennsylvania, dated September 28, 1984, at No. 834, Philadelphia 1982; Delaware County No. 2832 of 1981. Pa. Super. , 482 A.2d 670 (1984).

COUNSEL

Robert F. Pappano, Public Defender's Office, Media, for appellant.

John A. Reilly, Dist. Atty., Sandra L. Elias, Deputy Dist. Atty., Joseph J. Mittleman, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott and Papadakos, JJ., concurred in the result.

Author: Flaherty

[ 509 Pa. Page 21]

OPINION OF THE COURT

Appellant Glenn Whiting's petition for allowance of appeal from the Order of the Superior Court, Commonwealth v. Whiting, 333 Pa. Super. 633, 482 A.2d 670 (1984), affirming the judgment of sentence of the trial court,*fn1 was granted to consider the manner of computing time under Pa.R.Crim.P. 1100 where a committing magistrate dismisses charges pursuant to a Commonwealth motion to dismiss.

On the basis of the statement of a co-actor, a complaint charging appellant with, inter alia, robbery, kidnapping and various weapons offenses was filed on June 12, 1980.

[ 509 Pa. Page 22]

The charges stemmed from the June 7-8, 1980 armed robbery of a cab driver. As the victim failed to identify appellant as his attacker at a line-up conducted prior to the preliminary hearing, the Commonwealth moved for dismissal of the charges on the basis of a lack of identification testimony.*fn2 Without hearing any testimony, the district magistrate granted the motion and dismissed the charges on July 24, 1980. A second complaint was filed on May 14, 1981, and trial commenced on November 9, 1981 -- the 179th day after the filing of the second complaint. Appellant contends that (1) as his arrest was effected on information of a co-actor who was not present at the preliminary hearing but who was the Commonwealth's chief witness at trial and (2) as the original charges were dismissed at the instigation of the Commonwealth, the run date for purposes of Rule 1100 should be computed from the date of the first complaint.

As the prosecution under the original complaint was dismissed not after any independent review by the magistrate, but on motion of the Commonwealth, we treat this case as a voluntary withdrawal of the prosecution by the Commonwealth. For the purposes of computing time for trial under Rule 1100 then, the dismissal in this case is tantamount to a nolle prosequi. A nolle prosequi is a voluntary withdrawal by the prosecuting attorney of proceedings on a particular bill or information, which can at anytime be retracted to permit a revival of proceedings on

[ 509 Pa. Page 23]

    the original bill or information. See, Commonwealth v. McLaughlin, 293 ...


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