No. 2181 Philadelphia, 1980, APPEAL FROM THE ORDER OF SEPTEMBER 10, 1980 IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, CRIMINAL NO. 774-80
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.
[ 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 ...