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decided: March 13, 1981.


No. 80-3-681, Appeal from the Order of the Philadelphia Court of Common Pleas, Criminal Trial Division, dated July 17, 1980, Arresting Judgment of Indictment Nos. 806 and 808 November Sessions, 1975, and Discharging Defendant under Pa.R.Crim,P. 1100.


Steven H. Goldblatt, Deputy Dist. Atty., Eric B. Henson, Kenneth Gallant, Asst. Dist. Attys., Philadelphia, for appellant.

William P. James, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Flaherty

[ 493 Pa. Page 404]


In the Court of Common Pleas of Philadelphia, the defendant, Robert Polsky, was convicted of murder of the third degree and possession of an instrument of crime. On direct appeal to this Court, a violation of the speedy trial requirement of Pa.R.Crim.P. 1100(a)(2) was asserted, whereupon the case was remanded for a hearing to develop a factual record sufficient to determine the Rule 1100 claim. Commonwealth v. Polsky, 485 Pa. 360, 402 A.2d 1003 (1979). The instant appeal follows the grant, on remand, of a motion for arrest of judgment and dismissal of charges based upon a failure of the Commonwealth to comply with Rule 1100(a)(2).

The following facts were found, on remand, by the court below. Defendant departed from the Commonwealth on August 6, 1975, the date of the homicide. On August 7, 1975, a complaint charging defendant with criminal homicide and certain weapons offenses was filed and an arrest warrant

[ 493 Pa. Page 405]

    was issued. Later the same day, federal agents located defendant in North Carolina and arrested him on charges of violating interstate fugitive laws. Pennsylvania law enforcement authorities were immediately informed of the arrest and were advised that an extradition hearing was scheduled for August 14, 1975. In reliance upon the expected extradition hearing, the Commonwealth, on August 13, 1975, sent officers to North Carolina to attend the proceeding. On August 14, 1975, however, these officers discovered that the hearing was not in fact an extradition hearing but was instead a jurisdictional hearing between federal and state authorities. Therefore, that same day, the officers visited defendant in jail and advised him of their interest in returning him to Philadelphia, whereupon the defendant replied that he was unwilling to go to Philadelphia and that he would await consultation with his attorney. Based on this conversation, the officers concluded that the defendant would not waive extradition proceedings. Although federal charges were nol prossed, defendant remained in custody in North Carolina because of the Pennsylvania charges. On August 29, 1975, the Philadelphia Police Department requested the District Attorney's office to commence extradition proceedings, and, on September 3, 1975, the extradition unit of the District Attorney's office was requested to obtain a Governor's warrant initiating the proceedings. On September 8, 1975, the extradition unit requested the indictment division to process the necessary paperwork, and on September 23, 1975 a letter was sent to the Deputy Secretary of the Commonwealth requesting that the Governor approve the requisition application as soon as possible. On October 13, 1975, sixty-seven days after the complaint was filed, defendant signed an extradition waiver. Consequently, Philadelphia police went to North Carolina on October 15, 1975, arrested the defendant, and on October 16, 1975 returned to Philadelphia for a preliminary arraignment. Trial commenced on April 9, 1976, 246 days after the complaint was filed.

[ 493 Pa. Page 406]

The Pennsylvania prompt trial requirement is set forth in Pa.R.Crim.P. 1100(a)(2), which provides: "Trial in a court case in which a written complaint is filed . . . shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." Hence, the 180 day period within which defendant's trial was required to commence started to run on the date the complaint was filed, August 7, 1975, and would normally have expired on February 3, 1976. See Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). At no time did the Commonwealth seek an extension of time pursuant to Pa.R.Crim.P. 1100(c). However, Pa.R.Crim.P. 1100(d) provides: "In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant . . ." This Court has held that "[Rule 1100(d)(1)] requires a showing of due diligence in order for the Commonwealth to avail itself of an exclusion." Commonwealth v. Mitchell, 472 Pa. at 561, 372 A.2d at 830. Hence, it must be established by a preponderance of the evidence that police acted with due diligence in executing an arrest warrant. Id. Commonwealth v. Polsky, supra. Furthermore, the Comment to Rule 1100 provides that "the defendant should be deemed unavailable for any period of time . . . during which he contested extradition . . ." It was for the purpose of ascertaining whether police used "due diligence" to execute the arrest warrant to secure defendant's return to Pennsylvania, and to determine if and when extradition was opposed, that this Court initially ordered a remand, with allowance to pursue other issues on a later appeal.*fn1

The court below held that the Commonwealth failed to exercise due diligence in returning defendant to Philadelphia. It further held ...

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