No. 2391 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Trial Division, Criminal Section, at Nos. 848 - 850 October Term, 1977
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J., files a dissenting opinion.
[ 280 Pa. Super. Page 551]
Appellant, Alfonso Postell, was convicted by a judge sitting without a jury of robbery, aggravated assault and conspiracy. Following the denial of post-trial motions, he was sentenced to a term of imprisonment of two to five years.*fn1 This appeal followed.
Appellant contends that the lower court erred in granting the Commonwealth's petition, filed pursuant to Pa.R.Crim.P. 1100, to extend the time for commencement of trial. We agree and, for the reasons set forth herein, reverse the judgment of sentence and order appellant discharged.
Appellant was arrested by complaint filed on August 30, 1977. His trial, therefore, should have commenced on or before February 26, 1978. However, on February 23, 1978, the Commonwealth timely petitioned the court for an order
[ 280 Pa. Super. Page 552]
extending the time for commencement of trial.*fn2 A hearing on that request was scheduled for March 16, 1978 to determine whether the Commonwealth had exercised due diligence in its efforts to commence trial within the prescribed 180-day period.
Following "hearing"*fn3 the court issued a finding of due diligence and extended the final trial date to April 3, 1978.*fn4 The trial court's finding was based upon two notations appearing in the court records.*fn5 They indicated that on December 20, 1977 the case was "Ready-Not Reached", and thus continued to January 24, 1978, on which date it was further continued to February 15, 1978 because the complainant arrived after the court had adjourned.
Contrary to appellant's contention that the lower court erred in relying upon such court records, this court has impliedly permitted such use. Commonwealth v. Gibson, 248 Pa. Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa. Super. 16, 369 A.2d 787 (1977). Nevertheless, a review of the total record fails to reveal a sufficient display of due diligence by the Commonwealth.
[ 280 Pa. Super. Page 553]
In addition to the above notations recited by the trial court, the court records also disclose that the case was twice continued-on February 15, 1978 and February 22, 1978-solely as a result of the Commonwealth's failure to notify necessary witnesses.*fn6 It was, in fact, the latter postponement which gave rise to the petition for extension at issue.
No explanation was offered by the Commonwealth for such failure. Nor was evidence presented to show why, despite the unavailability of its witness on February 15 and February 22, 1978, the case could still not be commenced on or before February 26, 1978.
Since it is the Commonwealth which has the burden of establishing due diligence and, on the record before us, it has not done so, we are compelled to conclude that the lower court erred in granting the Commonwealth's petition for extension.
Judgment of sentence reversed, and ...