No. 1608 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal Division, at No. 880 of 1978.
Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.
William Platt, District Attorney, Allentown, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
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Appellant contends that the lower court erred in: granting the Commonwealth's petition for an extension of time for the commencement of trial under Pa.R.Crim.P. 1100(c); and, alternatively, admitting evidence of a photographic identification by a Commonwealth witness. For the reasons that follow, we reverse and remand for a new trial.
Appellant was arrested on June 29, 1978, pursuant to a complaint filed on June 27, 1978. Consequently, under rule 1100(a), appellant's trial should have commenced on or before December 26, 1978.*fn1 Following three brief defense-requested continuances and a preliminary hearing, appellant was held for trial. On October 3, 1978, the Commonwealth filed an information charging appellant with robbery, simple assault, theft by unlawful taking or disposition, receiving stolen property, felonious restraint, false imprisonment and two counts of kidnapping. Appellant was arraigned nine days later. On November 13, 1978, the scheduled trial date, appellant timely filed his omnibus pre-trial motion and notice of alibi defense. On November 15, 1978, the Commonwealth requested a continuance to investigate appellant's alibi defense, which, apparently, rested upon two witnesses from Arkansas. Citing appellant's continuances and the need to investigate his alibi defense, the Commonwealth petitioned on November 20, 1978 for an extension of time under rule 1100(c). Following a hearing on January 18, 1979, the lower court granted the Commonwealth's petition and the case proceeded immediately to trial. A jury found appellant guilty of robbery, simple assault, theft by unlawful
[ 301 Pa. Super. Page 99]
taking and felonious restraint. Following the denial of post-verdict motions and imposition of sentence, appellant took this appeal.
Appellant contends that the lower court erred in granting the Commonwealth's petition for an extension of time to commence his trial. We disagree. "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. Superior Ct. 178, 182, 411 A.2d 238, 240 (1979). Moreover, it must be established "that trial is scheduled for the earliest date consistent with the court's business." Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976). The Commonwealth has the burden of proving by a preponderance of the evidence that these two requirements have been satisfied. 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." Commonwealth v. Hill, 290 Pa. Superior Ct. 399, 401, 434 A.2d 813, 814 (1981). Read in this light, the record reveals that the Commonwealth was forced to reschedule appellant's preliminary hearing three times because of his inability to secure counsel. Although those defense-requested continuances are not excludable under rule 1100(d), they may be considered in determining whether the Commonwealth has been duly diligent in bringing appellant to trial. Commonwealth v. Brant, 272 Pa. Superior Ct. 135, 140, 414 A.2d 707, 709 (1979); Commonwealth v. Mancuso, 247 Pa. Superior Ct. 245, 253-54, 372 A.2d 444, 448 (1977). Appellant's trial was scheduled to commence on November 13, 1978, well within the prescribed period. On that day however, appellant filed notice of an alibi defense, listing his two witnesses as residents of Little Rock, Arkansas. The Commonwealth promptly requested a continuance and subsequently petitioned for an extension of time to
[ 301 Pa. Super. Page 100]
commence trial in order to investigate appellant's alibi. Because there were no more criminal trial sessions scheduled for the remainder of the year, the lower court rescheduled the case for the January trial session. We are satisfied that the record adequately shows that the Commonwealth was duly diligent in bringing appellant to trial. The initial delays were caused by appellant's requests for continuance. The Commonwealth's subsequent requests for continuance and extension of time to investigate appellant's alibi defense were certainly reasonable considering the time the Commonwealth first learned of it, the location of the witnesses in Little Rock, Arkansas, and the lack of criminal trial sessions the remainder of the year. We are also satisfied that the ...