NO. 32 PHILADELPHIA, 1981, Appeal from the judgment of sentence of the Court of Common Pleas of Lebanon County, Pennsylvania, Criminal Division, at No. 198 of 1980.
John D. Enck, Lebanon, for appellant.
William Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Wickersham, Beck and Popovich, JJ. Wickersham and Popovich, JJ., concur in the result.
[ 308 Pa. Super. Page 439]
This is a direct appeal from the judgment of sentence entered against Appellant by the Court of Common Pleas of Lebanon County. Two claims are made.
One is a boilerplate claim that the verdict was "contrary to the evidence, contrary to-the weight of the evidence, contrary to the law, and whether the evidence was insufficient to sustain the verdict." Taking this as a general claim of insufficiency of evidence, we have carefully reviewed the trial transcript. The two Commonwealth witnesses who established Appellant's guilt had been charged as co-conspirators. They unambiguously identified Appellant and described his role, as leader and planner, of the two burglaries for which he and they had been charged. The jury was
[ 308 Pa. Super. Page 440]
made aware of the factors such as personal animosities and bargains with the Commonwealth that might detract from the credibility of these witnesses. The jury chose to believe their testimony.
Our scope of review is limited to the question of whether, considering the evidence in the light most favorable to the Commonwealth, the trier of fact can find every element of the crime proved beyond a reasonable doubt. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978). In this case, it is clear that there was evidence from which the trier of fact could lawfully and logically convict Appellant as charged.
Appellant's second claim is that trial did not commence within 180 days of the date the criminal complaint was filed. Rule 1100, R.Crim.P. The Commonwealth does not dispute that the criminal complaint was lodged against appellant on December 6, 1979 and the trial conducted on June 26, 1980, 23 days after the run date. The Commonwealth argues, however, that certain periods of the interim time are excludable from computation due to unavailability of the Appellant. Rule 1100(d)(3)(i). There were three separate dates during the time period in question when Appellant was said to be unavailable for a preliminary hearing resulting in continuances. The question for this court in each instance was whether the Commonwealth fulfilled its duty under Rule 1100 in light of the cases clarifying the duty of the Commonwealth to exercise due diligence to secure Appellant's availability and to avoid unnecessarily long delays in rescheduling of the proceedings. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Goodman, 260 Pa. Super. 266, 393 A.2d 1256 (1978).
The calendar of relevant events was as follows: December 6, 1979, complaint lodged; January 2, 1980, arrest, arraignment and admission to bail; January 11, 1980, preliminary hearing convened and continued until February 29, 1980; February 29, 1980 preliminary hearing ...