dissenting:
I must respectfully dissent to the majority’s holding that the issuance of process is an “antecedent condition” to the filing of a criminal complaint.
In Commonwealth v. Kellie, 275 Pa.Super. 106, 418 A.2d 634 (1980) this court held that a private complaint was not deemed filed until an assistant district attorney had approved it and the district justice had signed it. Until that point, a summons or warrant could not be issued subjecting the defendant to the disruptions caused by a criminal proceeding. Rule 1100 did not start to run until that point. The court relied in part, on Judge Spaeth’s concurring opinion in Commonwealth v. James, 258 Pa.Super. 157, 392 A.2d 732 (1978).1 That concurring opinion argued that actual issuance of process was not the triggering event for Rule 1100 purposes as criminal proceedings commenced when process could potentially issue at the time the district justice approved the complaint.
The Supreme Court in Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), in distinguishing a situation where a complaint follows an arrest from one where a complaint precedes the arrest stated that where a complaint is presented and process issues the criminal proceedings are commenced with the presentation of the complaint. In reaching such position the court found the complaint was *580filed with the presentation to the district justice and Rule 1100 runs from that point.
Commonwealth v. Silver, 238 Pa.Super. 221, 357 A.2d 612 (1976), resolved the issue of whether criminal proceedings commenced with the presentment of an investigating grand jury. In resolving such issue, the court compared its factual situation to the case where a criminal complaint was filed. It was noted that a complaint followed by a summons or warrant immersed a defendant in the criminal justice system. The court reasoned that once the complaint was filed, the prosecutorial forces would be quickly brought to bear by means of a summons or warrant. The conclusion reached was that the presentation of the investigating grand jury did not start the 180 day period because the subject of the presentment was not yet subject to summons or arrest.
The majority attempts to distinguish the above cases by distinguishing the factual settings of those cases. The issue resolved in Kellie, supra was whether a private complaint was filed when the complainant signed it or after the attorney for the Commonwealth approved it and the issuing authority accepted it. Kellie, James, supra, as well as Mitchell, supra, involved situations where process had issued close in time with the district justice’s acceptance of the complaint. Mitchell, involved a police complaint. The majority therefore finds such cases are not controlling as the present issue was not properly before those courts.
While I cannot fault the majority’s factual distinctions, I must respectfully disagree that such differences are determinative or persuasive in resolving the issue at hand. The majority correctly notes that the purpose behind the speedy trial rule is to protect the accused from both the direct and indirect ramifications of standing accused of a criminal deed. From the filing of the complaint the Commonwealth has 180 days (barring excludable time, waiver, or extension of time) to proceed to trial. According to the majority, no such protection should be afforded an individual who stands accused but has not been directed to appear; no protection *581is necessary until the issuing authority places his signature on a summons or arrest warrant. I find such reasoning to be flawed.
An accused does not actually feel the pressures of the prosecution until he or she is actually summoned or arrested. The signing of the summons or warrant can no more disturb the tranquility of an unexpecting defendant than the acceptance of the complaint. Yet the courts of this Commonwealth have universally held that where a complaint precedes arrest, Rule 1100 commences from the date of the complaint. See Mitchell, supra. Therefore I believe the 180 day period runs from the district justice’s acceptance of the complaint, not the issuance of process.
The majority opinion carefully attempts to avoid creating any notable differences between the application of Rule 1100 to private complaints and police complaints. However, lest dictum in the majority’s opinion be misunderstood, I wish to express my opinion on any such difference. Rule 134, Pa.R.Crim.P., describes the role of the issuing authority “[i]n any proceeding initiated by complaint” (emphasis supplied). After reviewing the complaint, the district justice shall endorse the complaint and issue a summons or warrant. In both the case of a private complaint and police complaint the defendant may not be served with a summons or warrant until the district justice issues such. The practical difference, mentioned by the majority, that in the situation of a police complaint the authorities are aware of the alleged criminal activity and will take the appropriate action is of no weight. In either case the district justice must mail out the summons, or in the case of an arrest warrant, direct it to the police or a constable.
The majority proffers possible views on whether the Commonwealth had exercised due diligence as to the first complaint. However, having found the first complaint was a nullity, the lead opinion need not determine whether due diligence had been exerted as to the first complaint. As I *582believe that Rule 1100 should run from the first complaint,2 it must also be determined whether the Commonwealth may rely upon its claim of due diligence, in an unrelated case, for a concurrent time period, to demonstrate appellee’s unavailability in the case at hand.3
Where the Commonwealth is aware of a defendant’s incarceration in another jurisdiction, the Commonwealth may not assume the defendant is unavailable unless it has exerted a reasonable effort to secure his or her appearance. Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982); and Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978). While any comparison between the current situation and one where the suspect is known to be incarcerated is attenuated, the latter situation demonstrates that the Commonwealth may not presume a defendant’s unavailability.
In a similar light, where a suspect is unavailable for trial on unrelated charges, the prosecution cannot successfully claim such a delay resulted in a delay in the proceedings at issue. Only where an absence causes a delay in the proceedings of the case in question can the period of delay be excluded pursuant to Rule 1100(d). Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976); Commonwealth v. Lewis, 237 Pa.Super. 357, 352 A.2d 99 (1975). See also Commonwealth v. Bundridge, 268 Pa.Super. 1, 14 n. 13, 407 A.2d 406, 413 n. 13 (1979) (dissenting opinion by Hoffman, J.). Under the facts of this case, I do not find that appellant’s absence, as to the other charges, delayed the proceedings in this case as no effort was made to issue process on him.4
*583In several other situations the Commonwealth has been likewise denied the benefit of a fortuitous turn of events. In Commonwealth v. Vaughan, 475 Pa. 227, 380 A.2d 326 (1977), the fact that a defendant was to be tried on other charges during a certain term of court, did not excuse the prosecution from trying him for the whole term, but only those days actually spent at trial. Nor could the mere fact that the defense attorney would have been unable to try the case had it been called to trial toll the period for trial unless the case was actually listed for trial. Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977). While in Commonwealth v. Hilliard, 278 Pa.Super. 221, 420 A.2d 510 (1980), the Commonwealth was not allowed to rely on an earlier petition, certifying that a preliminary hearing could not be held because the defendant’s whereabouts were unknown, to later satisfy it duty to exercise due diligence in locating the defendant.
In the light of the above cases, I would hold that the Commonwealth may not rely on the efforts of one police department, in an unrelated case, during a concurrent period, to supply due diligence in a second case where in the second case no effort is made to locate the defendant and the second enforcement agency has no knowledge of the first’s efforts.5
I would affirm the order of the trial court directing that appellant be discharged. Therefore I respectfully dissent.
. James was decided before a seven judge court; one judge joined in the concurring opinion. The majority did not address the rule 1100 claim.
. The attempt to withdraw the original complaint was not made until after the original 180 day period had expired. I believe such an attempt was not only untimely but also would have been ineffective even had it been made earlier. See Commonwealth v. Sires, 284 Pa.Super. 50, 424 A.2d 1386 (1980).
. This issue is the crux of the Commonwealth’s appeal.
. The complainant testified that he did not know appellee’s whereabouts, though he knew appellee "had left town." (N.T. pp. 14, 16).
. The Commonwealth contends any efforts by the second police agency would have been useless. While such may be true in a particular case, it is just as probable that a joint effort or a second effort may provide additional information leading to the defendant’s apprehension.