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filed: May 22, 1981.


No. 2633 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Nos. 2087-2091 October Term, 1978.


Nancy D. Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Hugh C. Clark, Philadelphia, submitted a brief on behalf of appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Hoffman

[ 287 Pa. Super. Page 316]

The Commonwealth contends that the lower court erred in concluding that the time for commencing trial was improperly extended pursuant to Pa.R.Crim.P. 1100(c). We agree and, accordingly, reverse the order of the lower court.

On October 23, 1978, the Commonwealth filed a criminal complaint charging appellee with various offenses arising from a robbery committed earlier that day. Thus, pursuant to Pa.R.Crim.P. 1100(a)(2), appellee's trial should have commenced on or before April 23, 1979. Appellee's trial was scheduled for March 19, 1979. On that date, however, appellee's newly retained counsel requested a continuance to prepare the defense. The court granted the continuance, whereupon appellee waived his rule 1100 rights until June 7, 1979. When appellee's case was called for trial on June 6, the Commonwealth advised the court that it could not proceed because the victim was not present due to a death in his family. Later that day, the Commonwealth filed a petition for an extension of time for commencement of trial pursuant to rule 1100(c). Following an evidentiary hearing conducted on June 20, 1979, the Commonwealth was granted an extension of time for trial until August 3, 1979. On July 23, 1979, appellee was tried before a different judge who found him guilty of simple assault, robbery, terroristic

[ 287 Pa. Super. Page 317]

    threats, carrying a firearm on a public street, and possessing an instrument of crime. Appellee then filed post-verdict motions alleging, inter alia, that the Commonwealth had failed to show that it had exercised due diligence in attempting to secure the presence of the victim for trial before the June 7 run date. The trial court agreed and, accordingly, granted appellee's motion in arrest of judgment and ordered him discharged. This appeal followed.

"'A court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.' Pa.R.Crim.P. 1100(c)." Commonwealth v. Miller, 270 Pa. Super. 178, 182, 411 A.2d 238, 240 (1979). "The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c)." Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). (citations omitted). In reviewing the lower court's ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. See Commonwealth v. Ehredt, supra, 485 Pa. at 193, 401 A.2d at 360. "Thus, when witnesses become unavailable toward the end of the Rule 1100 time period -- whether through vacation, illness, or other reasons not within the Commonwealth's control -- the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted." Commonwealth v. Sinor, 264 Pa. Super. 178, 183 n.5, 399 A.2d 724, 727-28 n.5 (1979).

At the extension hearing, the victim, Marquis Chester, testified that he had personally spoken with an assistant district attorney on May 3, 1979, and had promised to appear at the trial scheduled for June 6, 1979. Although he had received a subpoena to appear on June 6, he decided not to do so because he chose to attend his aunt's funeral in

[ 287 Pa. Super. Page 318]

Salsbury, Maryland. Mr. Chester testified further that he requested his mother to call the district attorney's office and inform them that he would not appear because of the unavoidable family emergency. Additionally, the assigned assistant district attorney testified that on June 1 he had made numerous telephone calls in an effort to remind Mr. Chester of the forthcoming trial and that he had left a message for him with the superintendent of his apartment complex. The assistant district attorney testified also that at ...

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