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COMMONWEALTH PENNSYLVANIA v. CHARLES THOMPKINS (02/25/83)

filed: February 25, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES THOMPKINS, APPELLANT



No. 1465 October Term, 1979, Appeal from Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at Nos. 816-818, November Term, 1977.

COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant.

Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, P.j., and Cavanaugh, Rowley, Wieand, McEwen, Cirillo and Montemuro, JJ. Cercone, P.j., files dissenting opinion.

Author: Montemuro

[ 311 Pa. Super. Page 359]

Following a jury trial, appellant was found guilty of burglary,*fn1 robbery,*fn2 and conspiracy.*fn3 Post-verdict motions were denied by the learned and distinguished trial judge, Honorable Angelo A. Guarino, and appellant was sentenced to a term of ten (10) to twenty (20) years imprisonment on the robbery conviction, ten (10) to twenty (20) years concurrent imprisonment on the burglary conviction and five (5) to ten (10) years concurrent imprisonment on the criminal conspiracy conviction. Appellant raises several allegations of trial error on this appeal. We find no merit in any of these issues and accordingly affirm.

On the evening of October 31, 1977, Mrs. Ella Woodley, 72 years of age, allowed three young black men into her house. She initially permitted them to enter her home because she recognized John Plummer, one of appellant's co-defendants. Immediately after the entry, the men announced "this is a stick-up." One of the men grabbed Mrs. Woodley, and told her that if she made a noise he would hit her, and the other two took various personal items from the house. They then locked Mrs. Woodley in a powder room in the basement and left. Approximately a half-hour later,

[ 311 Pa. Super. Page 360]

    she freed herself and called the police. The police, after receiving a description of the hold-up men from Mrs. Woodley, brought several black males back to her residence. She identified two of them as the perpetrators of the crime.

Appellant initially contends that a Commonwealth petition for an extension of the Rule 1100 rundate was improperly granted and that he, therefore, should be discharged. The rundate was May 1, 1978, and the trial was first scheduled for February 28, 1978. The trial was postponed until April 10, 1978 at the request of co-defendant's counsel. Although Mrs. Woodley had told an assistant district attorney on the telephone that she would appear at trial, she, nevertheless, did not appear. A bench warrant was issued for her the following day. An investigatory detective discovered that she was in North Carolina attending a funeral and would return on April 22, 1978. The detective again tried to contact her at her residence on April 24, but was told that she had not as yet returned. The detective contacted the post office, the utility company and neighbors and ascertained that Mrs. Woodley still lived at the Philadelphia address. The Commonwealth filed a petition on April 27, 1978, for an extension of the rundate alleging due diligence in attempting to bring appellant to trial. The issue therefore is whether the Commonwealth proved due diligence at the extension hearing held on April 28, 1978.

The Commonwealth has the burden of proving due diligence by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). When the Commonwealth seeks an extension of the rundate to secure the presence of a missing witness, the test is whether the methods of procuring the witness were reasonable under the circumstances of the case at that time. Commonwealth v. Long, 288 Pa. Super. 414, 432 A.2d 228 (1981). It is not necessary that all methods be exhausted. Commonwealth v. Long, id. From the above recitation of the circumstances surrounding the extension of the trial date, it is clear that the Commonwealth made more than a reasonable effort to produce Mrs. Woodley before May 1, 1978.

[ 311 Pa. Super. Page 361]

The trial court was therefore correct in concluding that the Commonwealth was duly diligent and in consequently granting the extension.

Appellant next contends that the trial court erred at the suppression hearing by denying appellant's request to produce the complaining witness to testify concerning probable cause for the arrest and the on-the-scene identification.*fn4 Appellant alleges that the presence of the complaining witness is necessary to effectively determine the propriety of the on-the-scene identification. Furthermore, he contends that under Commonwealth v. Lee, 262 Pa. Super. 280, 396 A.2d 755 (1978), the presence of the complaining witness is mandatory regardless of the quantity and quality of the other testimony produced at the hearing.

In Commonwealth v. Lee, id., the court stated:

Here, the Commonwealth's failure to have the complainant testify, not only concerning her observation of her attacker, but also concerning her own view of the identification procedure, left the hearing judge without evidence essential to the issue of admissibility. Accordingly, the Commonwealth failed to meet its burden of proof. Id., 262 Pa. Superior at 288, 396 A.2d at 758.

The court, after deciding that the trial court erred in denying the suppression motion, then proceeded to justify the admissibility of the testimony relating to the on-the-scene identification by an examination of the entire record. The court, after concluding that the identification was proper, continued,

Our decision here to decide the admissibility of the identification on the basis of a review of the entire record should not be understood as meaning that we shall undertake such a review in another case . . . In deciding admissibility, the hearing judge must hear testimony of the identifying witness; if the Commonwealth fails to

[ 311 Pa. Super. Page 362]

    produce the witness, the identification should be suppressed. Id., 262 Pa. ...


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