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COMMONWEALTH PENNSYLVANIA v. MICHAEL JACKSON (09/07/79)

filed: September 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL JACKSON, APPELLANT



No. 1305 October Term 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division at No. 1992-1977.

COUNSEL

Arthur J. King, Assistant Public Defender, Chief, Appeals Division, Norristown, for appellant.

Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ.

Author: Spaeth

[ 269 Pa. Super. Page 251]

This is an appeal from judgments of sentence entered on convictions of robbery, theft of movable property, various assault charges, reckless endangerment, felonious restraint, and possession of an instrument of crime. The main issue raised on appeal is whether the lower court erred in granting the Commonwealth's petition to extend appellant's trial date, under Pa.R.Crim.P. 1100(c).*fn1

The complaint was filed May 19, 1977, so that under Rule 1100 the Commonwealth was obliged to bring appellant to trial within 180 days, or by November 15, 1977. Trial was first set for September 14, but appellant appeared without an attorney. On October 27, 1977, appellant's attorney requested and was granted a "pass" until November 14 (the day before the Rule 1100 run date) because the attorney was scheduled to go on vacation. On November 10, the Commonwealth filed a petition to extend.*fn2 A hearing on the petition was held on December 1, 1977, and an extension until February 27, 1978, was granted. Appellant was tried on December 7.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Supreme Court held:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the "due diligence" of the prosecution, and (2) certification

[ 269 Pa. Super. Page 252]

    that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349, 1350.*fn3

A number of cases have considered the kind of proof that must be offered by the Commonwealth if it is to prove its due diligence. In Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), the Commonwealth attempted to prove due diligence through the assistant district attorney's statement that several commonwealth ...


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