dissenting.
I dissent. I cannot agree that the decisions of this Court require us to condone the Commonwealth’s obvious attempt to evade the requirements of Rule 1100 in the instant matter merely because the Commonwealth did not employ the nolle prosequi procedure in furtherance of its design. See Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979).
The Commonwealth’s decision to request a third continuance rather than proceed with the preliminary hearing was, by the Commonwealth’s own admission, an exercise of prosecutorial discretion. The Commonwealth stresses the importance of the victim’s testimony in a robbery prosecution, but does not contend that it was not in possession of sufficient evidence to make out a prima facie case without such testimony on June 16, 1976. In light of the fact that the testimony of only one of the two arresting officers at the *454November 10, 1977, hearing was ruled sufficient to establish a prima facie case against appellee on all charges, it seems clear that the Commonwealth could have proceeded at the June hearing. Instead, the attorney for the Commonwealth appeared with no witness for a third time and requested still another continuance so that he could again attempt to contact the complaining witness, explaining that the witness worked in a travelling circus, could be notified only through his family, and could appear only when he was “in the area.” The Commonwealth gave the court no assurance that it could secure the complainant’s attendance at any given time. Further, even with such assurance, the court would have been constrained by local rules of criminal procedure. Philadelphia Criminal Rule 800(III)(C) provides:
III. Continuances may be granted in a preliminary hearing only as follows:
(C) In all preliminary hearings, including homicides, the Commonwealth, for valid cause, will be granted up to two continuances.
The Rules of the Philadelphia Municipal Court, in which the hearing was listed, are equally clear:
Rule 555. Preliminary Hearings
(A) Municipal Court Judges may dismiss cases at preliminary hearings where the Commonwealth witnesses fail to appear three (8) times. The Court may issue bench warrants for Commonwealth witnesses in appropriate cases.
It is obvious that the Commonwealth had no reasonable expectation that a continuance would be granted and a dismissal avoided when it appeared at the scheduled hearing.
The dismissal of the first complaint, therefore, was a direct consequence of the Commonwealth’s decision not to proceed. Appellee cannot be faulted for objecting to a third continuance and moving for discharge under such circumstances, nor should he be prejudiced thereby in computing the time for trial under Rule 1100. This dismissal, moreover, worked to the Commonwealth’s obvious advantage. Its effect was to remove the proceedings from judicial *455control, leaving the Commonwealth free to delay its prosecution of appellee indefinitely before filing a second complaint on identical charges. Had the Commonwealth gone forward with its evidence on June 16, 1976, and established its case, any delay in securing the complainant’s attendance at trial would have been subject to Rule 1100(c)’s due diligence requirements, and no extension would have been available without leave of the court. Since the Commonwealth offers no explanation for its four-month delay in filing a second complaint, or for its failure to make use of the complaining witness’s testimony in any proceeding, there is no support in the record for the notion that the prosecution exercised due diligence in bringing appellee to trial.
Thus I would hold that, because the Commonwealth acted with the intent to circumvent the operation of Rule 1100 in engineering the dismissal of the first complaint, the period between the dismissal of that complaint and the filing of the second must be included in the Rule 1100 computation. Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). The order of the Superior Court vacating appellee’s sentence and ordering his discharge should therefore be affirmed.