filed: October 22, 1982.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
MELVIN C. WROTEN
No. 1871 Philadelphia, 1981, No. 1872 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division of Philadelphia County at No. 80-08-900-04.
Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Darryl A. Irwin, Philadelphia, submitted a brief on behalf of appellee.
Hester, Cavanaugh and Cirillo, JJ.
[ 305 Pa. Super. Page 342]
In this case, the appellee, Melvin C. Wroton, was charged with criminal conspiracy, recklessly endangering another person, simple and aggravated assault, theft and robbery. The charges arose out of an incident allegedly involving the appellee, in which a passenger on a bus at four o'clock in the afternoon was attacked by a group of some five youths and robbed of jewelry. Appellee was arrested on June 23, 1980, and several postponements on the date of trial resulted in the run date being extended under Pa.Crim.P. 1100 to June 29, 1981. All parties agree that if trial had been commenced on or before June 29, 1981, that it would have been timely under Pa.R.Crim.P. 1100. Trial was scheduled for June 22, 1981, and the assistant district attorney, Elliot Present, Esquire, was in court ready to proceed on that date. Unfortunately, the appellee was not in court as he had not been "brought down" from Camp Hill where he had been transferred without notice to the court, the sheriff's office or the Commonwealth prior to trial. Before the trial date the district attorney had issued a "bring down" order for appellee directed to the Graterford State Correctional Institution where the appellee had been confined. The Philadelphia District Attorney's office did not know on June 22, 1981, that the appellee was not at Graterford and had in fact been transferred to Camp Hill which is located outside of Harrisburg some one hundred miles from Philadelphia.
[ 305 Pa. Super. Page 343]
Mr. Present requested Judge Halbert, the trial judge, to issue a bring down order directed to Camp Hill so that the appellee could be brought down immediately for trial. The judge, although aware of the June 29, 1981 run date, refused to do so as he thought it would be impossible to bring the appellee down within one day's time and defense counsel indicated that he would be unavailable after 2:00 p.m. that day.*fn1 The assistant district attorney then requested trial on the earliest date consistent with court business and was told that July 2, 1981 was the earliest available date.*fn2 Arrangements were made by the district attorney's office to have the appellee present in court on July 2, 1981. On June 23, 1981, the district attorney's office filed a petition for extension of time on which to commence trial to July 6, 1981.
On July 2, 1981 a hearing was held on the petition to extend the run date under Pa.R.Crim.P. 1100 before Bongiovanni, J. On the same date Judge Bongiovanni denied the petition to extend and also on the same date Judge Braxton granted the appellee's oral motion to be discharged
[ 305 Pa. Super. Page 344]
with prejudice because Judge Bongiovanni refused to grant an extension of time in which to commence trial. The Commonwealth has appealed from both orders.
The sole question before us is whether Judge Bongiovanni erred in refusing to grant the Commonwealth's petition for extension of time in which to commence trial.*fn3 The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirement of Rule 1100(c), i.e., that despite the exercise of due diligence it was unable to bring the appellant to trial within the prescribed period. Commonwealth v. Akridge, 275 Pa. Super. 513, 419 A.2d 18 (1980). However, the preponderance of the evidence standard is the least burdensome standard of proof known to the law. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). 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 is uncontradicted. Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981).
Under the applicable law the court below erred in denying appellant's motion to extend the time for commencing trial. Within the run date the Commonwealth was ready to commence trial and was prevented from doing so by an administrative error which resulted in the bring down order being sent to Graterford rather than to Camp Hill. The prosecuting attorney requested the trial judge to order the appellant brought down from Camp Hill forthwith but the Judge refused to do so. The next available trial date
[ 305 Pa. Super. Page 345]
was July 2, 1981 and defendant could readily have been brought down to Philadelphia by that date. In these circumstances, the prosecutor exercised due diligence in his attempt to have the appellant tried by June 29, 1981. He timely filed a petition for extension of time after learning that the next available trial date was July 2, 1981. As pointed out in Commonwealth v. Long, 288 Pa. Super. 414, 419, 432 A.2d 228, 231 (1981):
As long as the Commonwealth acted reasonably, in light of the facts and circumstances as they appeared at the time, the Commonwealth acted with "due diligence," even if it appears in hindsight that there were other, possibly more desirable or efficacious methods that might have been tried. Commonwealth v. Hinton, 269 Pa. Super. 43, 48-52, 409 A.2d 54, 57-58 (1979) (Petition for Allowance of Appeal Denied December 10, 1979).
The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. "The 'due diligence' required . . . [in connection with Pa.R.Crim.P. 1100] does not demand a perfect diligence and punctilious care, but rather a reasonable effort."*fn4 Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981). The Commonwealth could have gone to trial on or before June 29th but the earliest available trial date after June 22, 1981 was July 2, 1981. A judicial delay is a justifiable basis for an extension of time if the Commonwealth is ready to proceed. Commonwealth v. Cimaszewski, 261 Pa. Super. 39, 395 A.2d 931 (1978).
[ 305 Pa. Super. Page 346]
The court below was concerned that the Commonwealth did not introduce evidence to show what steps were taken between June 22, 1981 and the run date of June 29, 1981 to try the case on or before June 29, 1981. Obviously, the Commonwealth did nothing after June 22, 1981 to try the case before June 29, 1981 as the assistant district attorney was told that the next trial date available was July 2, 1981.*fn5 The prosecutor's office on June 23rd filed a timely petition to extend the time for commencing trial and steps were taken to assure that the appellant would be present for trial on July 2, 1981. The July 2, 1981 trial date was only three days beyond the run date and in the circumstances of this case the Commonwealth acted with due diligence to have the appellant tried within the time frame set forth in Pa.R.Crim.P. 1100.
Orders reversed and case remanded for trial in the court below on the earliest available trial date.