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filed: September 7, 1979.


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.


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 witnesses would not be available on the date set for trial. The Supreme Court held:

[A] bare statement by the Commonwealth's attorney that several witnesses are "unavailable," without more, does not establish "due diligence" within that [preponderance of the evidence] standard. While the unavailability of a witness may be a relevant factor in determining whether an extension should be granted . . . "[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c)."

Id., 485 Pa. at 195-196, 401 A.2d at 361 (footnotes omitted).

The Court noted that

[a]t the extension "hearing," no testimony was offered by the Commonwealth in support of the allegation in its application to extend. Rather, the "hearing" consisted only of oral argument by the assistant district attorney and defense counsel.

Id., 485 Pa. at 194-195, 401 A.2d at 360.

Similarly, in Commonwealth v. Sinor, 264 Pa. Super. 178, 399 A.2d 724 (1979), this court reversed the grant of an extension:

[I]t is obvious from examination of the transcript . . . that no "hearing" was ever held. The Commonwealth

[ 269 Pa. Super. Page 253]

. . . made no presentation whatsoever in support of its petition. Instead, the court summarily granted the extension petition based solely upon its own recollection of the victim's hospitalization.

Id., 264 Pa. Super. at 183, 399 A.2d at 727 (footnote omitted).

See also, Commonwealth v. Damanskis, 264 Pa. Super. 154, 399 A.2d 712 (1979) (asserted unavailability of courtrooms not proved at "woefully inadequate" proceedings; case remanded for evidentiary hearing); cf. Commonwealth v. Stabler, 251 Pa. Super. 194, 380 A.2d 444 (1977) (on insufficient record, remanded for evidentiary hearing into validity of Commonwealth's assertion of overcrowded docket).

It is therefore settled that Rule 1100 requires evidence in support of a petition to extend.*fn4 This does not mean that Rule 1100 hearings may not be short and to the point.*fn5 If a Commonwealth petition pleads facts that the answer admits, no further proof should be necessary. Commonwealth v. Ehredt, supra, 485 Pa. 191, n. 8, 401 A.2d 358, n. 8. The technique of judicial notice may also be useful. In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) (plurality opinion, two justices concurring in result), the Court approved the lower court's taking judicial notice of the manner in which the court administrator scheduled criminal matters, since in Montgomery County (the same county involved here), calendar control is under the direct supervision and control of the board of judges. In Commonwealth v. Ehredt, supra, the Court also indicated that judicial notice might be acceptable for proving scheduling difficulties.

[ 269 Pa. Super. Page 254]

Defense counsel unrealistically expected the case to be called on the 14th or 15th of November. Judge Tredinnick noted on the record that in Montgomery County that was totally out of the question. The Court recognized that when a case is passed in the Assignment Room to a date certain, there is no guarantee that the case will proceed to a courtroom that specific date. Rather, the case must wait not only for an available courtroom, but also until all the cases listed previous to the postponement date are resolved and all counsel conflicts are settled. Lower court opinion at 6.

Under these circumstances, the Commonwealth's due diligence was proved,*fn7 and the extension was properly granted.


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