No. 1282 PHILA., 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Phila. County at Nos. 455-56 March Term 1978.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellee.
Spaeth, Wieand and Johnson, JJ.
[ 294 Pa. Super. Page 585]
This is an appeal by the Commonwealth from an order discharging appellee under Rule 1100(f). The lower court held that the police had not exercised due diligence in looking for appellee, and that the period between the offense and appellee's arrest should therefore not be excluded from the period within which appellee had to be tried. We reverse.
[ 294 Pa. Super. Page 586]
On August 12, 1977, appellee stabbed Eugenia Scott. On August 27, 1977, Detective Ryan of the Philadelphia Police filed a complaint against appellee and obtained a warrant for her arrest. She was not arrested, however, until February 16, 1978.
The original Rule 1100 run date -- 180 days from the date the complaint was filed -- was February 23, 1978. On April 4, 1978, appellee, who has not yet been tried, moved for a discharge under Rule 1100. The pre-trial motions court denied the motion, finding that despite due diligence, the police had been unable to find appellee before February 16, 1978, and that the period between the date the complaint was filed and the date of appellee's arrest should therefore be excluded as time during which appellee was unavailable. See Pa.R.Crim.P. 1100(d)(1).
On May 23, 1979, appellee was tried and found guilty of aggravated assault and possessing an instrument of crime. By timely post-verdict motion, appellee again moved for a discharge. The lower court granted the motion and discharged appellee, finding, contrary to the pre-trial motions court, that the police did not exercise due diligence in trying to find appellee.
The Commonwealth had the burden of proving by a preponderance of the evidence that the police exercised due diligence in trying to find appellee. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Jones, 256 Pa. Superior Ct. 366, 389 A.2d 1167 (1978). The Commonwealth's evidence of diligence consisted entirely of the testimony of Detective Ryan. On direct examination, the detective said:
On August 28 I again went to 5310 Priscilla [appellee's address]. There was no answer at the house. On 9-30 I went to the house. I was let into the house by her husband and by a 15 year old female who was her daughter and they stated that Eleanor Dorsey lived there but she wasn't home. I searched the house. She wasn't at home. On 10-23 I ...