No. 681 April Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County at No. CC 7600592A.
Lester G. Nauhaus, Assistant Public Defender, Chief, Appellate Division, Pittsburgh, for appellant.
Robert E. Colville, District Attorney, Pittsburgh, submitted a brief on behalf of Com., appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., dissents. Hester, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 341]
This appeal arises from denial in the court below of appellant's motion in arrest of judgment and for a new trial following his conviction by a jury of aggravated assault*fn1 and recklessly endangering another person.*fn2 The sole issue on appeal is the propriety of the lower court's denial of appellant's pre-trial motion to dismiss based on the Commonwealth's alleged failure to comply with Pa.R.Crim.P. 1100(a)(2).*fn3 For the reasons set forth herein, we are compelled to agree that the court below erred, and we accordingly vacate the judgment of sentence and discharge appellant.
[ 266 Pa. Super. Page 342]
The complaint in this case was filed in Allegheny County on December 5, 1975, however, appellant was not arrested until May 5, 1976, in Philadelphia. Under Pa.R.Crim.P. 1100(a)(2), the Commonwealth had one hundred eighty days from December 5, 1975, or until June 2, 1976, to bring appellant to trial. On July 19, 1976, appellant filed a motion to dismiss under Pa.R.Crim.P. 1100(f). Arguing that appellant had been unavailable until his arrest, the Commonwealth prevailed upon the court below to conclude that seventy-seven days were excludable from the mandatory period, and that appellant's motion should be dismissed. To the contrary, our review of the Rule 1100 proceedings convinces us that the Commonwealth did not establish the requisite due diligence in attempting to locate appellant, which would entitle it to the exclusion.*fn4
Rule 1100(d) states in part that "[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney; . . ." The Comments to the rule, although not binding upon this court, have been utilized by us as a source of guidance. Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977). The Comment to Rule 1100 provides in part that
"For purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; . . ."
While cases in this area do not abound, several decisions give us guidance in evaluating the prosecution's due diligence in locating a defendant. In Commonwealth v. Mitchell,
[ 266 Pa. Super. Page 343472]
Pa. 553, 372 A.2d 826 (1977), the Commonwealth likewise sought an exclusion under Pa.R.Crim.P. 1100(d)(1) of the time between the complaint's filing and the defendant's arrest. There, the supreme court observed initially that "the Commonwealth has the burden of proving the requisites of Section (d) in order to avail itself of an exclusion and must do so by a preponderance of the evidence." Id., 472 Pa. at 564, 372 A.2d at 831. In Mitchell, the appellant moved several times after commission of the crime, and he assumed an alias. The Commonwealth presented testimony of the detective in charge of the case who had visited some six to eight times Mitchell's mother's residence, where the appellant formerly resided. The officer acquired that address through prior arrest records. The officer testified that the appellant's mother gave a general indication of his wife's residence, but that the exact address could not be learned in spite of ...