No. 742 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1177/1179 April Term, 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Hester and Wieand, JJ. Cercone, President Judge, files a dissenting opinion.
[ 303 Pa. Super. Page 99]
Dexter Bright has appealed from a judgment of sentence imposed following conviction in a bench trial for robbery,*fn1 criminal conspiracy*fn2 and simple assault.*fn3 His sole contention is that the trial court erred when it granted the Commonwealth's petition to extend the time for commencement of trial under Pa.R.Crim.P. 1100(c).*fn4 Finding appellant's
[ 303 Pa. Super. Page 100]
argument to be without merit, we affirm the judgment of sentence.
Appellant was arrested on March 14, 1979, and a complaint was filed against him the following day, March 15, 1979. Pursuant to Rule 1100(a)(2),*fn5 therefore, the run date for commencement of trial was September 11, 1979. A preliminary hearing was held on April 17, 1979, and the charges against appellant were returned to court. On June 20, 1979, defense counsel requested and was granted a continuance for fifty days. Pursuant to Rule 1100(d)(2),*fn6 the grant of the fifty day continuance at the request of the defense resulted in an exclusion of twenty days and enlarged the time for commencement of trial to October 1, 1979. On August 9, 1979, the case was called for trial, but the complaining witness was then on vacation and unavailable for trial. A motion by the Commonwealth for continuance was granted, and the case was relisted for trial on September 4, 1979. On September 4, 1979, both the Commonwealth and appellant appeared before the Honorable Nicholas Cipriani, but on this date the arresting officer was
[ 303 Pa. Super. Page 101]
on vacation and unavailable. The case was again continued, and a new trial date was set for October 23, 1979.*fn7 On September 6, 1979, the Commonwealth filed a timely application for an extension pursuant to Rule 1100(c), alleging that because of the unavailability of the complainant and the arresting officer at the two previous trial listings and despite due diligence, trial could not be commenced within the time allowed by Rule 1100. Appellant filed an answer and, on September 28, 1979, moved to dismiss. A hearing was held on October 15, 1979 before the Honorable Ned L. Hirsh, who granted the Commonwealth's petition and ordered trial to be commenced on or before November 2, 1979. On October 23, 1979, appellant was tried and convicted.
"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." Commonwealth v. Sharp, 287 Pa. Super. 314, 317, 430 A.2d 302, 304 (1981). Accord Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); Commonwealth v. Jackson, 269 Pa. Super. 249, 253 n.4, 409 A.2d 873, 875 n.4 (1979). Appellant offered no evidence at the hearing, and the Commonwealth offered into evidence the record containing the notations made by the trial judge at the two ...