No. 1771 Philadelphia, 1981, Appeal from the Orders of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, dated June 9, 1981, denying the Commonwealth's Petition to Extend under Pa. R. Crim. P. 1100, granting appellee's Petition to Dismiss under Pa.R. Crim.P. 1100 and discharging appellee, and from the order dated June 30, 1981, denying the Commonwealth's Petition for Reconsideration, as of January Session, 1981, Information Nos. 1294 - 1296.
Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Mary Willmann, Assistant Public Defender, Philadelphia, for appellee.
Wickersham, Rowley and McEwen, JJ.
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The Commonwealth appeals from an order denying its Petition to Extend the time for trial under Pa.R.Crim.P. 1100 and discharging appellee.
A complaint was filed against appellee on October 15, 1980. Therefore, the period for trial under Rule 1100 was due to expire on April 13, 1981, one hundred and eighty days later. Trial was scheduled for April 7, 1981. The night before the trial, the prosecutor called the home of the sixteen-year-old victim, who had been subpoenaed, to remind
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him of his obligation to be present in court the next day. At that time, the prosecutor was advised by the victim's mother that he would not attend court the next day because of a high school mid-term examination. The victim later testified that he believed he would jeopardize his high school graduation if he missed this examination. On April 10, 1981, the Commonwealth filed a timely petition to extend the time for trial under Rule 1100. An evidentiary hearing was held on June 9, 1981, before the Honorable Matthew W. Bullock, Jr., who found that the Commonwealth had failed to exercise the due diligence required by Rule 1100. The Commonwealth's Petition to Extend was denied and appellee's Motion to Dismiss was granted.
We have concluded that the Commonwealth's Petition to Extend was necessitated by the unavoidable unavailability of the victim even though the Commonwealth made diligent efforts to secure the victim's presence at trial. Therefore, we reverse the orders of the lower court.
In Commonwealth v. Sharp, 287 Pa. Superior Ct. 314, 430 A.2d 302 (1981), the Court held that the Commonwealth was entitled to a Rule 1100 extension where its reasonable efforts to secure a witness's presence at trial were thwarted by the witness's decision not to appear for wholly personal reasons. See also Commonwealth v. Sinor, 264 Pa. Superior Ct. 178, 184 n. 5, 399 A.2d 724, 727 n. 5. In this case, the victim was properly subpoenaed. His decision not to appear was totally beyond the control of the Commonwealth.
The lower court concluded that the Commonwealth failed to exercise due diligence on the ground that it should have negotiated with the victim's family and school to make alternative arrangements for the examination. In determining whether due diligence has been exercised in trying to secure the presence of a witness, the court should not second-guess the methods used by the Commonwealth. Commonwealth v. Long, 288 Pa. Superior Ct. 414, 432 A.2d 228 (1981). As long as the Commonwealth has acted ...