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COMMONWEALTH PENNSYLVANIA v. EMORY LEROY GALLAGHER (12/29/81)

December 29, 1981

COMMONWEALTH OF PENNSYLVANIA
v.
EMORY LEROY GALLAGHER, APPELLANT



No. 93 Harrisbury, 1980, Appeal from the Judgment of Sentence dated March 20, 1980, Court of Common Pleas, Criminal Division, Perry County, at No. 51 of 1979.

Before Price, Johnson, and Shertz, JJ. Price, J., did not participate in the consideration or disposition of this case.

Per Curiam:

The judgment of sentence dated March 20, 1980 is affirmed on the comprehensive opinion of Judge Quigley.

PRICE, J., did not participate in the consideration or disposition of this case.

No. 93 Harrisburg, 1980

COMMONWEALTH v. EMORY LEROY GALLAGHER, aka LEROY EMORY GALLAGHER

IN THE COURT OF COMMON PLEAS OF THE 41ST JUDICIAL DISTRICT OF PENNSYLVANIA-PERRY COUNTY BRANCH

CRIMINAL NO. 51 of 1979

MEMORANDUM

In this appeal from judgment of Sentence entered by this Court on March 20, 1980, Defendant does not challenge his guilt for the offenses of forcible rape, simple assault, and the corruption of minors committed on August 19, 1978, in Rye Township, Perry County, Pennsylvania. Rather, Defendant has limited the issue on appeal to whether or not he should have been discharged as a result of the Commonwealth's alleged failure to comply with the provisions of Rule 1100 of the Rules of Criminal Procedure.

Trooper Donald L. Harriman of the Duncannon Sub-station of the Pennsylvania State Police on August 20, 1978, filed a criminal complaint to initiate this action. February 16, 1979, would be the date one-hundred eighty (180) days from August 20, 1978. The case was tried on June 8, 1979, a period of one-hundred (112) days beyond the time within which trial should ordinarily commence. Defendant on June 1, 1979, filed a motion for dismissal of charges alleging a violation of one-hundred eighty (180) day rule, the Commonwealth previously on April 21, 1979, having filed a motion for extension of time for trial.

On March 16, 1979, the Commonwealth filed a second complaint against the Defendant being identical to the original complaint of August 20, 1978. This was apparently done by the Commonwealth to attempt to avoid the effect of Rule 1100, although the Commonwealth has always argued and did argue at the early stages of this proceeding that the Defendant had been unavailable for protracted periods of time and was not able to be located by the Commonwealth even in the exercise of due diligence. While we have some question as to the procedure generally, we think that if this prosecution is to survive it must do so on the basis of the initial prosecution since we believe it is clear that once the period for trial has expired new life cannot be breathed into that period by subsequent filing of papers. Commonwealth v. Jones, 256 Pa. Super 366, 389 A.2d 1167 (1978).

Accordingly, since the Commonwealth's motion for extension was not timely filed we will discuss the question as to whether or not the Defendant or his attorney was unavailable and whether or not the Commonwealth exercised due diligence.

It is now well accepted that the Commonwealth has the burden of proving by the preponderance of evidence that the defendant was unavailable and that the police had used due diligence to discover his whereabouts during the period of unavailability. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). However, it is not the function of the courts to second guess the methods used by the police to locate the accused person. Rather, "the analysis to be employed is whether, considering the information available to the police, they acted with diligence in attempting to locate the accused. Deference must be afforded the police officer's judgment as to which avenues of approach ...


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