dissenting:
Between March 10 and May 21, 1975, four separate complaints based on the same criminal episode were filed against appellant. The majority, relying on our decision in Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1976), holds that the 180 day period prescribed by Rule 1100 commenced with the filing of the fourth complaint, and that therefore appellant was brought to trial in time. I dissent. Mumich is distinguishable. When this distinction is understood it is seen that both our decisions in Mumich and the Supreme Court’s decision in Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976), require that the 180 day period be computed from the filing of the first complaint.
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A restatement of the facts will be helpful. On March 10, 1975, the Pennsylvania Outlet Mall was burglarized. On the same day Officer Willard Leavelle filed a complaint against appellant charging him with the burglary, and appellant was arrested. On March 20, Officer R. C. Blosser, Jr., filed a second complaint against appellant, charging him with abetting retail theft incident to the burglary. On April 16, a preliminary hearing was held on the first complaint, and the complaint was dismissed because the Commonwealth failed to establish a prima facie case. Pa.R.Crim.P. 141(d), 143(a). On April 17, Officer Blosser filed a third complaint against appellant, again charging him with the burglary and adding the charge of conspiracy to commit burglary. On May 21, at Officer Blosser’s request, the second and third complaints were withdrawn and Officer Blosser filed a fourth complaint against appellant, again charging him with conspiracy to commit the burglary.
On these facts the majority states:
Here, as in Mumich, the record fails to show that either the appellant or his attorney objected to the dismissal of the [first] complaint by the magistrate. We must therefore assume that the magistrate did not abuse his discretion in dismissing the complaint. Since the complaint was properly dismissed by the magistrate, the Commonwealth was not precluded from filing a new complaint. See Pa.R.Crim.P. 150(b); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). . . . Since appellant’s trial timely commenced with the filing of the [fourth] complaint . . . , we hold that appellant’s rights under Rule 1100 were not violated. Majority opinion at 450 (emphasis added).
Contrary to this statement, the present case is not “as in Mumich.” In Mumich the first complaint was dismissed by the magistrate at the preliminary arraignment because the signature of the prosecutrix-affiant did not appear on the defendant’s copy of the complaint, Pa.R.Crim.P. 132, and within a month a second complaint was filed, which resulted *455in conviction. A majority of this court treated the defect in the first complaint as if it were “substantive” rather than “informal”. But see Commonwealth v. Mumich, supra, 239 Pa.Super. at 213-214, 361 A.2d at 361-362 (1976) (Dissenting Opinion by Speath, J.). Where the defect is substantive, the complaint must be dismissed unless the defendant waives the defect, but a new complaint, with the defect corrected, may be filed. Pa.R.Crim.P. 150(b).1 Therefore, said the majority:
According to Rule 150(b) there is nothing improper with filing a new complaint. We read Rule 1100 on prompt trial as applying to complaints properly filed and not to defective complaints that are dismissed.- Id., 239 Pa.Super. at 213, 361 A.2d at 361.
Here, however, the first complaint was not dismissed because it was defective — either “substantively” or “informally.” Instead, it was dismissed because the Commonwealth did not establish a prima facie case at the preliminary hearing.
The importance of this distinction between Mumich and the present case is this. In Mumich the majority said:
[T]he record fails to show any objection by appellant or his attorney to the dismissing of the complaint because of the defect. We interpret this as an acquiescence in the procedure employed by the magistrate. 239 Pa.Super. at 212, 361 A.2d at 361.
With “acquiescence” found, the conclusion followed that the Rule 1100 period had not started to run. Here no “acquiescence” can be found, for under Rules 141(d) and 143(a), the district justice had to dismiss the first complaint: his decision to dismiss was compelled by the Commonwealth’s failure to establish a prima facie case; it was not a decision *456with respect to which appellant had any say, whether by way of acquiescence or disagreement.
Therefore, Mumich is distinguishable because the dismissal there turned on whether the complaint itself was defective whereas here the dismissal turned on the Commonwealth’s failure to establish a prima facie case. It could be argued that this difference alone requires that the period prescribed by Rule 1100 be computed from the first complaint because “[w]e read Rule 1100 ... as applying to complaints properly filed and not to defective complaints that are dismissed.” Commonwealth v. Mumich, supra, 239 Pa. Super, at 213, 361 A.2d at 361. Here, the first complaint was “properly filed” and not “defective.”
However, it is not necessary to decide this point, because, as the majority points out:
We tempered our holding in Mumich . . . with the recognition that the prompt trial period would attach from the date of the second complaint only if (1) the first complaint was properly dismissed and (2) the record fails to reflect an improper prosecutorial design to circumvent the mandate of Rule 1100. Majority Opinion at 424 (emphasis added).
Therefore, under Mumich the prescribed period will be computed from the filing of a complaint filed after the first complaint only if two conditions are met. In other words: unless both of these two conditions are met, the period must be computed from the filing of the first complaint. What the majority fails to recognize is that here the second condition was not met. Thus, by the majority’s own statement of Mumich, the period should be computed from the filing of the first complaint.
To be sure, the majority says that the second condition of Mumich was met because
. the record does not demonstrate “ . . . any impropriety by the district attorney’s office in this case to avoid the mandate of Rule 1100.” Id., at 450 (quoting Commonwealth v. Mumich, supra, 239 Pa.Super. at 212, 361 A.2d at 361) (footnote omitted, emphasis added).
*457I agree that the record does not demonstrate “any impropriety by the district attorney’s office.” However, whether there is “an improper prosecutorial design to circumvent the mandate of Rule 1100” cannot be determined in every case by scrutinizing only the conduct of the district attorney’s office. In Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), the Commonwealth argued that the period prescribed by Rule 1100 should be computed from the date of preliminary arraignment where arrest was made pursuant to warrant because (said the Commonwealth) “ . . . Rule 1100 addresses itself to the prosecutorial officers and not police”. Id., 472 Pa. at 562, 372 A.2d at 830. The Supreme Court responded:
The argument is devoid of merit. When the police file a complaint they initiate criminal proceedings against an accused, Pa.R.Crim.P. 101, and thus are clearly prosecutorial officers. Id. (emphasis added)
Here, the parade of complaints filed by the police is evidence, at the very least, of a thoughtlessly managed prosecution. Under the majority’s reasoning, by virtue of this thoughtlessness the Commonwealth gained an additional period of seventy-two days within which to bring appellant to trial.2 Yet during that period appellant was continuously under threat of prosecution. In my opinion, the successive complaints that were filed by the police3 in this case, based as they were on the same incident, “reflect an improper prosecutorial design to circumvent the mandate of Rule 1100.”4 Thus I would hold that the second condition speci*458fied by Mumich has not been met, so that the period prescribed by Rule 1100 must be computed from the filing of the first complaint.
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By way of a footnote the majority asserts that Commonwealth v. Whitaker, supra, supports its determination that the second condition of Mumich was met. Thus the majority says:
The instant case is . distinguishable from Commonwealth v. Whitaker [supra,] ... In Whitaker, the court reasoned that “ . . . the prosecution’s motion for a nolle prosequi pursuant to Rule 314 was simply an effort to gain an extension of the time period during which it was required to bring appellee to trial.” Id., 467 Pa. at 443, 359 A.2d at 177. No such effort on the part of the prosecution is apparent in the instant case. Id., at 450, n. 2 (emphasis added).
This distinction is without merit, for the Supreme Court’s decision in Whitaker does not require that the prosecution’s conduct be an “apparent” attempt to circumvent the mandate of Rule 1100.
The facts of Whitaker are important to understanding the language quoted by the majority. Two days before the period prescribed by Rule 1100 expired, the prosecution filed a motion for a nolle prosequi on the ground that there was no admissible evidence with which to prosecute the case. The motion was granted. A month later the prosecution filed a motion to vacate the nolle prosequi, arguing that the entry of the nolle prosequi had tolled the running of the prescribed period. As the majority points out, the Supreme Court rejected this argument, stating that “ . . . the *459prosecution’s motion for a nolle prosequi . . . was simply an effort to gain an extension of the time period during which it was required to bring appellee to trial.” However, it is clear from a careful reading of the Court’s opinion that the Court did not mean to suggest by this statement that the decision whether there has been a violation of a defendant’s right to a speedy trial depends upon proof of bad prosecutorial motive. Quite to the contrary, the Court made it plain that under Rule 1100, proof of prosecutorial motive is irrelevant. The Court stated:
The test mandated by Rule 1100 is the only test to be applied in Pennsylvania to determine a speedy trial claim. It was not meant to be applied in addition to Barker’s “balancing test.” It represents this Court’s determination that the “balancing test” . . . provides only the “minimum standards guaranteed by the Sixth and Fourteenth Amendments,” and that such minimum standards are not adequate to provide Pennsylvania criminal defendants the protection guaranteed by the constitution of this Commonwealth. See Pa.Const. Art. I, Sec. 9. Id., 467 Pa. at 442, 359 A.2d at 176.
Thus, unless the prosecution gains additional time under one of the exceptions provided in Rule 1100, Pa.R.Crim.P. 1100(c) and (d), a defendant must be brought to trial within the prescribed period. Commonwealth v. Shelton, 469 Pa. 8, 13, 364 A.2d 694, 697 (1976).
In this case there are no periods excludable under the exceptions. Accordingly, the period prescribed by Rule 1100 started to run on March 10, 1975, when the first complaint was filed. Appellant should therefore have been brought to trial by September 8, 1975. He was not brought to trial until September 29.
The judgment of sentence should be vacated and appellant discharged.
HOFFMAN, J., joins in this opinion.. Pa.R.Crim.P. 150(b) provides:
If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.
. This is the number of days between the filing of the first complaint, on March 10, and the filing of the fourth complaint, on May 21.
. Another distinction between Mumich and the present case is that in Mumich the complaint was a private complaint, which must be approved by the district attorney before it is filed. Pa.R.Crim.P. 133(B)(i).
. In addition it should be noted that the procedure followed here, of submitting, then withdrawing, and then resubmitting, the complaints, was illegal. Pa.R.Crim.P. 151 provides:
In any court case pending before an issuing authority, the affiant, with the approval of the attorney for the Commonwealth, may *458withdraw the prosecution by setting forth in writing the reason for the withdrawal.
There is no suggestion in the record that Officer Blosser set forth in writing his reason for withdrawing the prosecutions initiated by the second and third complaints. This illegality is by itself sufficient reason to find improper prosecutorial design.