The opinion
SPAETH, Judge,
concurring:
I agree that the judgments of sentence should be affirmed. I think, however, that some further comment on the Rule 1100 question is in order.
On February 23,1978, appellant was charged in a criminal complaint with attempted murder, arson, risking a catastrophe, recklessly endangering another person, burglary, criminal conspiracy, and criminal mischief. On March 8 a preliminary hearing was held, at which the following evidence was introduced against her.
Emma Jean Reeves testified that on February 22,1978, at about 8:00 a. m., she left her apartment in fine condition and went to City Hall to testify as a witness at a trial there. She knew appellant, and appellant was in the court room while she testified. At 8:30 p. m. she returned to find that her apartment had been broken into and set aflame. N.T. 3/8/78 at b-6.
Raymond Hopkins testified that he lived in the first floor apartment below Emma Reeves. At about 7:00 p. m. on February 22, 1978, he heard a noise at the front door of the house, which sounded like someone breaking in. He then *461 heard “a few foot tracks like a terrible noise upstairs,” id. 18, and saw a man and a woman run out the front door. He was only able to see them from behind. He was blind in one eye and had impaired vision in the other. From the color of her hair he nonetheless thought that the woman was appellant. Id. 22-23. After seeing the couple flee, Hopkins returned to his room and watched television. At approximately 7:30 p. m. he heard someone yell, “Fire upstairs,” and he left the house. Id. at 24. He saw smoke coming from the second floor where Emma Reeves lived. Hopkins estimated that ten or fifteen minutes elapsed between the time he saw the couple leave the house and the time he saw smoke coming from the second floor. Id. at 25.
Catherine Goode, who lived two doors away, testified that shortly after seeing a man break into the house where Emma Reeves and Raymond Hopkins had their apartments, she saw appellant and a man in front of her house.
Lieutenant Lawrence Dove of the Philadelphia Fire Department testified that the Reeves apartment had been broken into by force, and that the fire started in her apartment and was of incendiary origin.
The court concluded that this evidence failed to make out a prima facie case against appellant. Although the issue is perhaps close, I think this conclusion was correct. Cf. Majority op. at 1389 n. 1.
On August 8, 1978, a second criminal complaint was filed against appellant. She was arrested on September 20, and on October 6 a second preliminary hearing was held. Raymond Hopkins, Catherine Goode, and Lieutenant Dove again testified. Their testimony was substantially the same as their testimony at the first hearing. The only additional evidence provided at the second hearing was testimony by Judith Frankel Rubino. This testimony demonstrated that appellant had a motive to commit the crimes alleged. Rubino, a Philadelphia assistant district attorney, testified that on February 21 and 22, 1978, she had prosecuted Gregory Gainor for murder. Emma Jean Reeves was a witness for the Commonwealth. Rubino testified that appellant was in the courtroom, and that when the verdict of guilty was *462 returned, she became hysterical, “yelling and screaming,” and had to be physically restrained. N.T. 10/6/78 at 43.
At the conclusion of this evidence the court found a prima facie case against appellant for arson, burglary, conspiracy, and criminal mischief. Id. at 53-54.
If the day for computing the Rule 1100 period commenced on the date the first complaint was filed, trial should have commenced on August 22, 1978. If, however, the period commenced on the date the second complaint was filed, trial had only to commence on February 5, 1979. In fact appellant was brought to trial on January 22, 1979.
Appellant argues that “the Commonwealth delayed making out a prima facie case until weeks after the 180 day period dating from the first complaint .... Since there was no apparent reason for the delay except to avoid [Rule 1100], the 180 day period runs from the first complaint.” Brief for Appellant at 7. I agree that the Commonwealth’s delay in filing the second complaint when the additional evidence needed to make out a prima facie case—the testimony of the assistant district attorney—was within its control does show a disregard of appellant’s right to a speedy trial. I do not, however, believe that it shows that the Commonwealth at the first preliminary hearing acted in bad faith or tried to circumvent the mandate of Rule 1100. Indeed the evidence is to the contrary. The Commonwealth on direct examination sought to elicit from Emma Jean Reeves the same evidence it was ultimately able to obtain from Rubino. N.T. 3/8/78 at 8. The prosecutor asked Reeves what appellant’s reaction was to the jury’s verdict in the Gainor murder trial. Reeves testified, however, that she was not in the court room at that time and therefore did not know. Further evidence of the Commonwealth’s good faith is that the first preliminary hearing promptly followed the filing of the first complaint. I find no basis for inferring that as a device to circumvent Rule 1100 the Commonwealth sought at the first preliminary hearing to have its complaint dismissed for insufficient evidence.
As regards its delay in filing the second complaint, the Commonwealth asserts that “once the [first] complaint is *463 properly dismissed as here, it is irrelevant when the rearrest occurs.” Brief for Commonwealth 8-9 (footnote omitted). I am by no means sure that this is true. Whether the Commonwealth has a duty to act with due diligence in prosecuting a case that has been dismissed at a preliminary hearing because of the failure to present sufficient evidence is a novel issue. While the Commonwealth has discretion in deciding whether to prosecute some one in the first instance, once it has decided to, as shown by its filing a complaint, it should, it seems to me, proceed promptly. Failing to proceed promptly when the Commonwealth has within its control the additional evidence needed to make out a prima facie case is contrary at least to the spirit, if not the letter, of Rule 1100. See generally Commonwealth v. Hamilton, 449 Pa. 297 , 297 A.2d 127 (1972); Commonwealth v. Mitchell, 472 Pa. 553 , 372 A.2d 826 (1977); Commonwealth v. Collins, 266 Pa.Superior Ct. 340, 404 A.2d 1320 (1979).
I do not understand the majority opinion to decide this issue. Nor do I decide it. Appellant’s argument focuses on the Commonwealth’s conduct at the first preliminary hearing. The issue of the effect, if any, of the Commonwealth’s ensuing delay is therefore not before us.