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filed: August 24, 1979.


No. 906 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1804 and 1807 March Term, 1976.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Hoffman, J., files a dissenting statement. Jacobs, J., did not participate in the consideration or decision of this case.

Author: Price

[ 269 Pa. Super. Page 46]

Following a jury trial, appellant was convicted on October 6, 1976, of rape*fn1 and possession of an instrument of crime generally.*fn2 Appellant's post-trial motions were denied, and he was sentenced to imprisonment of from three to ten years on the rape conviction and one to two years on the possession charge. For the reasons set forth herein, we affirm the judgment of sentence.*fn3

Appellant first maintains that the judgment must be vacated because the Commonwealth failed to comply with Pa.R.Crim.P. 1100(a)(2),*fn4 which requires that a defendant be brought to trial within 180 days of the complaint's filing. The alleged rape in this case occurred at approximately 12:30 a. m., on July 17, 1975. When police displayed photographs to the complainant that day, she selected appellant's picture and stated that she was "90% sure" that he was her assailant. On August 24, 1975, the complainant contacted the police to inquire of the case's progress. The following day, she was shown a second group of photographs, out of which she selected appellant's photo and was "100% sure." On September 14, 1975, a complaint was lodged against appellant, and a warrant issued for his arrest. Police immediately contacted prisons, including Holmesburg Prison, Philadelphia County, to determine whether appellant was incarcerated. When police received no information to indicate that appellant was incarcerated, they commenced a street investigation on September 22, 1975.

When an officer went to appellant's home, no one responded. Housing police at appellant's apartment building were informed of the warrant, given a photograph of appellant,

[ 269 Pa. Super. Page 47]

    and asked to contact the police department if they saw him. When an officer returned to appellant's residence on November 1, 1975, appellant's mother informed him that she did not know her son's whereabouts; she had thrown him out of the home. Two subsequent trips to appellant's residence, and conversations with Mrs. Hinton in December 1975 and in March 1976, resulted again in frustration. On March 5, 1976, police learned that since September 22, 1975, appellant had been incarcerated. He was arrested that day.

Because the complaint in this case was filed on September 14, 1975, appellant's trial had to commence on or before March 15, 1976,*fn5 absent any Commonwealth-requested extensions under Pa.R.Crim.P. 1100(c), or any automatic exclusions of time under Pa.R.Crim.P. 1100(d) due to the defendant's unavailability. Appellant's first trial, which resulted in a mistrial when the jury was unable to reach a unanimous result, actually commenced on July 7, 1976, 294 days after the complaint's filing. Because there were no extensions of time granted under Rule 1100(c), we must find at least 114 days of excludable time under Rule 1100(d) in order for the Commonwealth to prevail. We find that appellant was unavailable for Rule 1100 purposes prior to March 6, 1976, and that this unavailability resulted in 173 days of excludable time. Accordingly, we hold that he was timely tried.

Before embarking upon a consideration of legal precedent for our holding, we note that we are affirming on the Rule 1100 issue for a reason vastly different from the one relied upon by the Honorable Lisa Richette of the Court of Common Pleas of Philadelphia County. In the hearing on appellant's motion to dismiss under Rule 1100(f), considered by Judge Richette on June 16, 1976, the Commonwealth contended that the actual filing date of the complaint in this case was not September 14, 1975, but was March 6, 1976.

[ 269 Pa. Super. Page 48]

The Commonwealth's reasoning was that although Detective Kephart, the complainant, and Judge Ralph Dennis, the affiant, signed the complaint on September 14, 1975, Judge Conroy did not finally acknowledge the complaint until March 6, 1976. Over the protestations of trial counsel that because the warrant of arrest was issued pursuant to that complaint on September 14, 1975, it was obvious that legal processes had commenced then, Judge Richette favored the Commonwealth; she held that the complaint in this case was filed on March 6, 1976, when Judge Conroy signed it and it was placed in the Quarter Sessions file.

Apparently, the procedure utilized in Philadelphia in this case was the same as that condemned in Commonwealth v. Lewis, 254 Pa. Super. 152, 385 A.2d 570 (1978). In Lewis, the Court of Common Pleas of Philadelphia County had explained the local procedure:

"In Philadelphia, the procedure is that after a complaint is signed, it remains in the hands of the police until the defendant is arrested and arraigned. It is at that point that the various copies of the complaint are distributed to the Court, the District Attorney and to the defendant. It is this Court's analysis of Rule 1100 that the Supreme Court in promulgating that rule intended and meant by the words, 'When the complaint is filed,' to mean when the complaint is filed at the preliminary arraignment when the four copies of the complaint be dispersed and the defendant arraigned."

On appeal, we condemned such an obvious effort to circumvent Rule 1100, noting that there was apparently no limit under the procedure as to how long the police could continue to hold the complaint and thereby attempt to toll the Rule. Again, we note the extreme disfavor with which we view this procedure. If the time differential between the endorsements were just several days, it could no doubt be explained as administrative delay. The time lapse in this case indicates, however, that this procedure was simply devised in an effort to undercut the Rule's purpose. It is well settled that a judgment may be affirmed by the appellate

[ 269 Pa. Super. Page 49]

    court on any legal theory, regardless of the rationale or theory employed by the lower court. Commonwealth v. O'Donnell, 472 Pa. 25, 370 A.2d 1209 (1977); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977); Commonwealth v. Whitehouse, 222 Pa. Super. 127, 292 A.2d 469 (1972). Accordingly, although we are in complete disagreement with the rationale of the court below, we agree with the result reached, and will affirm the judgment of sentence.

The pertinent question in this case is whether the Commonwealth proved by a preponderance of the evidence that it acted with due diligence in locating and apprehending appellant. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977).

In Commonwealth v. Mitchell, supra, the Commonwealth asserted the appellant's unavailability as cause for the commencement of trial after the expiration of the 180 day period. To refute the Commonwealth's assertion that it could not locate Mitchell, it was argued that he received public assistance benefits and that he was employed under his own name. Mitchell argued that the Commonwealth could have located him through one of these associations. The record did not reflect, however, that the police department knew either that assistance was being received or that Mitchell was employed. The court declared:

"It is not the function of our courts to second-guess the methods used by police to locate accused persons. The analysis to be employed is whether, considering the information available to the police, they have acted with diligence in attempting to locate the accused. Deference must be afforded the police officer's judgment as to which avenues of approach will be fruitful." Id., 472 Pa. at 566, 372 A.2d at 832 (emphasis added).

In Mitchell, the police visited a known address on several occasions and circulated in the police department a photograph of the appellant. The supreme court found that those steps adequately demonstrated due diligence.

[ 269 Pa. Super. Page 50]

In Commonwealth v. Jones, 256 Pa. Super. 366, 389 A.2d 1167 (1978), this court considered the identical question. In a fact situation closely following the one presently before us, including an intervening arrest, arraignment and court appearance, we held that although the police could have pursued other avenues to locate appellant, that is not the controlling factor. It is simply not required that the Commonwealth exhaust every conceivable method of locating a defendant. Rather, when reasonable steps are taken, the requirement of due diligence is met.

It seems clear that the test is not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, or other things done, an arrest would probably have been made. The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done. The standard of due diligence demands only reasonable efforts.

In applying that standard to the facts as recounted, we have no difficulty in concluding that the Commonwealth established due diligence. Accordingly, there were 173 days of excludable time. Appellant's first trial, commencing on July 7, 1976, therefore began on the 121st day of the mandatory period, and the Rule was satisfied.*fn6

Appellant next maintains that the trial court erred in restricting cross-examination relating to a witness's reasons for altering his testimony from exonerating to implicating appellant. On Friday, October 8, 1976, the prosecution called Arnold Jones to the witness stand. The following then transpired:

"BY MR. ROSENBERG [Assistant District Attorney]:

[ 269 Pa. Super. Page 51]

Q. In July of 1975, were you on the 1900 block of Catharine Street around two o'clock in the morning? In the month of July, were you there?

A. Yeah.

Q. And at that time did you see Robin Smithers there?

A. Yeah, I seen her.

Q. Did you see Dennis Hinton there?

A. No.

Q. The person you have just identified today as the defendant, Dennis Hinton, did you see him there with ...

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