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filed: October 8, 1982.




Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellant.

John D. Merrick, Public Defender, Marsha A. McClellan, Assistant Public Defender, West Chester, for appellee.

Spaeth, Rowley and Cirillo, JJ. Spaeth, J., concurs in the result.

Author: Cirillo

[ 305 Pa. Super. Page 312]

This is an appeal from an order of the lower court granting appellee's petition to dismiss, with prejudice, criminal charges against him, discharging him from custody, and denying the Commonwealth's petition for an extension of time in which to commence trial, both filed pursuant to Pa.R.Crim.P. 1100.*fn1 For reasons stated herein, we reverse the orders of the lower court, reinstate the informations, and remand the case for trial within 120 days.

On December 23, 1979, a fire occurred behind a bakery in West Chester, Pennsylvania. Appellee, who was suspected of having set this fire, was arrested in New Jersey on January 7, 1980 and charged with arson in connection with another fire that was set on December 31, 1979 in Atlantic City, New Jersey. After the Chester County authorities were notified of appellee's arrest, they contacted the First Assistant Prosecutor of Atlantic County who informed them that extradition would not be permitted until the conclusion of the proceedings against appellee in New Jersey. On February 7, 1980, after completion of their investigation, Chester County authorities filed a complaint charging appellee

[ 305 Pa. Super. Page 313]

    with arson and related crimes in connection with the West Chester fire.*fn2

Appellee pleaded guilty to the New Jersey charges on March 3, 1980 and a presentence investigation and report was ordered.*fn3 He was sentenced on April 25, 1980, thus concluding the New Jersey prosecution.

Appellee was returned to Chester County on May 5, 1980, and, on June 6, 1980, entered a plea of not guilty to the charges filed in connection with the West Chester fire. Trial was scheduled for August 18, 1980. On July 31, 1980, the Commonwealth filed a timely application to extend time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). Appellee filed a petition to dismiss pursuant to Pa.R.Crim.P. 1100(f) on August 13, 1980. On September 10, 1980, after a hearing, the Commonwealth's petition was denied and appellee's was granted.

The Commonwealth contends that the lower court erred in finding that it failed to prove, by a preponderance of the evidence, that it acted with due diligence to secure appellee's presence for trial. Commonwealth v. Polsky, 493 Pa. 402, 406, 426 A.2d 610, 612 (1981); Commonwealth v. Kovacs, 250 Pa. Super. 66, 71, 378 A.2d 455, 457 (1977). We agree.

A trial must commence within 180 days of the date upon which a written complaint, charging a defendant with a crime, has been filed. Pa.R.Crim.P. 1100(a)(2). Any period of delay resulting from the unavailability of the defendant is excluded. Pa.R.Crim.P. 1100(d)(1).*fn4 The period is also

[ 305 Pa. Super. Page 314]

    subject to an extension upon a showing by the Commonwealth that trial could not be commenced within the prescribed time. Pa.R.Crim.P. 1100(c); Commonwealth v. Roman, 494 Pa. 440, 444, 431 A.2d 936, 938 (1981); Commonwealth v. Williams, 284 Pa. Super. 125, 131, 425 A.2d 451, 454 (1981). A defendant's incarceration in another jurisdiction may provide a valid reason for granting an extension provided that the Commonwealth sustains its burden of proving that it exercised due diligence in attempting to secure the defendant's presence at trial. Commonwealth v. Emmett, 274 Pa. Super. 23, 28, 417 A.2d 1232, 1235 (1979); Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192, 194-95 (1978); Commonwealth v. McCafferty, 242 Pa. Super. 218, 363 A.2d 1239, 1240 (1976). It is important to note that the Commonwealth is not required to show that it acted with perfect vigilance and punctilious care. It is only necessary that it prove that reasonable efforts were made to procure a defendant's attendance at trial. Polsky, 426 A.2d at 613, Emmett, 417 A.2d at 1235.

The evidence presented in the instant case clearly shows that the Commonwealth sustained its burden of proving that it acted with due diligence. Its immediate inquiry into the feasibility of extradition proceedings, its justified reliance on the Assistant Prosecutor's statement that it would be notified as soon as the prosecution was concluded, and appellee's prompt return to Chester County following the disposition of the New Jersey charges is sufficient to prove, by a preponderance of the evidence, that the Commonwealth acted with due diligence to secure appellee's

[ 305 Pa. Super. Page 315]

    presence at trial. Roman, 431 A.2d at 938; Williams, 425 A.2d at 455; Commonwealth v. Warman, 260 Pa. Super. 130, 393 A.2d 1046, 1049 (1978).

The lower court's finding, that the Commonwealth's failure to institute proceedings under the Uniform Criminal Extradition Act was evidence of a lack of due diligence on its part, was incorrect. This action would clearly have been futile in light of the New Jersey authorities' steadfast refusal to release appellee prior to the conclusion of the criminal proceedings against him in New Jersey.*fn5 Williams, 284 Pa. Superior Ct. 132, 425 A.2d at 455. In addition, the Commonwealth should not have been penalized for failing to secure appellee's presence through the Interstate Agreement on Detainers Act. This act could not be employed to gain custody of appellee because it only provides for the extradition of defendants who are serving sentences in other jurisdictions, and not those who are merely incarcerated while awaiting the disposition of criminal charges against them.*fn6 Commonwealth v. Heath, 288 Pa. Super. 119, 128, 431 A.2d 317, 321 (1981), compare, Commonwealth v. Long, 258 Pa. Super. 251, 392 A.2d 779, 783 (1980).

Therefore, the lower court erred in granting appellee's petition to dismiss and in denying the Commonwealth's petition to extend. Compare, Commonwealth v. Bass, 260 Pa. Super. 62, 393 A.2d 1012, 1014-15 (1978).

The order of the lower court is reversed, the informations are reinstated and the case is remanded for trial.

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