No. 1421 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 62-63 September Term 1977.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Cavanaugh and Lipez, JJ.
[ 290 Pa. Super. Page 401]
On February 21, 1978 the appellant was tried by the lower court, sitting without a jury, and convicted of aggravated assault and possessing an instrument of crime. The sole issue before us is whether the lower court improperly granted the Commonwealth's petition for extension pursuant to Pa.R.Crim.P. 1100(c).
Rule 1100(c) provides as follows:
(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirements of Rule 1100(c). Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979). In reviewing a determination that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. Id.
Here the complaint was filed on August 5, 1977, fixing the Rule 1100 run date as February 1, 1978. The case was listed for trial on eight different dates. The docket reveals the following listings and reasons why trial did not commence:
[ 290 Pa. Super. Page 402]
August 10, 1977: Complaining witness failed to appear at ...