No. 2747 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 2005 Dec. Term, 1975
Burton A. Rose, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn* Eagen, J., files a dissenting opinion.
[ 278 Pa. Super. Page 334]
Appellant, Terry C. Mott, was convicted of rape following a non-jury trial on May 17, 1976. Post-verdict motions were filed by new counsel for appellant, who raised, inter alia, the ineffectiveness of trial counsel for having failed to petition the trial court for dismissal of the charge under Pa.R.Crim.P. 1100.
Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of two to ten years. On appeal, we vacated the judgment of sentence and remanded for an evidentiary hearing to determine whether appellant had been denied the effective assistance of counsel. Following a hearing on April 27, 1978, the trial court concluded that since Rule 1100 had not been violated, a petition to dismiss would have been successful. Accordingly, it found trial counsel not to be ineffective. On October 23, 1978, judgment of sentence was reimposed and this appeal followed.
The record discloses that the complaint was filed and an arrest warrant obtained on November 13, 1975. Trial commenced on May 17, 1976. Thus, 186 days elapsed between the filing of the complaint and commencement of trial. Since no extension of time was sought by the Commonwealth pursuant to Rule 1100(c), it was required to establish, by a preponderance of the evidence, that six days should be excluded pursuant to Rule 1100(d). See Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). On remand, the trial court concluded that the Commonwealth
[ 278 Pa. Super. Page 335]
had satisfied its burden and denied appellant relief. We agree and, therefore, affirm.
The trial court excluded one day pursuant to Rule 100(d)(2) as a result of the court's granting a 31-day continuance to appellant from February 6, 1976 to March 8, 1976. It further excluded three days under subsection (d)(1) because it found the police had, despite the exercise of due diligence, been unable to apprehend appellant until his surrender on November 16, 1975, thus rendering him unavailable for the period from November 13 to November 16.*fn1
A review of the record discloses efforts by the police to locate appellant included visits to his residence on November 13 and 14, 1975; advising appellant's mother that he was sought by the police; providing appellant's description to officers in the vicinities of appellant's apartment and the scene of the crime; and, placing appellant's description over the police teletype and radio. In light of these attempts, we cannot agree with appellant's contention that the police's failure to make additional efforts-including visits to appellant's apartment on November 15 and 16-demonstrates a lack of due diligence. To require the effort proposed by appellant would be to extend the burden of due diligence to unreasonable lengths.
The exclusion of these four days from the 186 day period between the filing of the complaint and commencement of trial thus extended the allowable period of Rule 1100 to Saturday, May 15, 1976. Since trial commenced the following Monday, May 17, 1976, the Rule was ...