No. 2180 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal, Nos. 80-07-2111-2113.
Sarah Van den Braak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
Brosky, McEwen and Watkins, JJ.
[ 317 Pa. Super. Page 580]
Appellee had been adjudged guilty of aggravated assault,*fn1 recklessly endangering another person*fn2 and endangering the welfare of children*fn3 after kicking and choking his own one month old baby. The trial judge entered an order that discharged appellee after granting the post verdict motion of appellee that asserted that it was error for the hearing judge to have granted the petition of the Commonwealth to extend the 180 day period by eleven days. The Commonwealth has appealed from that order. We reverse and remand.
[ 317 Pa. Super. Page 581]
Appellee was arrested at the time of the attack on July 8, 1980, and a complaint was filed on the same day. The 180 day period within which trial of appellee was to commence in accordance with Rule 1100*fn4 expired on January 5, 1981. The matter was scheduled for trial on December 23, 1980, but was continued upon the motion of the Commonwealth by reason of the failure of the mother of the child to appear at the trial on that date. The Commonwealth, on December 26, 1980, filed a petition to extend the 180 day period for trial, to which counsel for appellee filed an answer on January 12, 1981, and upon which the distinguished Judge Edward Rosenwald held a hearing on January 16, 1981, before directing that the case was to be tried on that very date or the charges were to be dismissed. The trial did in fact commence that day before the learned Judge Leon Katz, sitting without a jury, who found appellee guilty of all charges, ordered a pre-sentence investigation, including a psychiatric report, and increased the bail to $20,000.00. Six months later, on July 15, 1981, the trial judge, at the conclusion of the presentation of oral argument by counsel for the parties upon the motion of appellee, but without any additional testimony: (1) concluded that the Commonwealth had not, at the hearing upon the petition to extend, shown due diligence; (2) granted the motion of appellee to dismiss all charges and (3) discharged appellee.
The Commonwealth presented but one assertion in its brief:
The post-verdict court erred in reversing a well-based, judicially authorized Pa.R.Crim.P. 1100 extension, granted due to the unavailability of a necessary and important witness, simply because the Commonwealth ultimately obtained a conviction without her testimony.
The sole issue of our focus is the due diligence of the Commonwealth and, specifically, the due diligence of the Commonwealth concerning the trial date of December 23, 1980. The Commonwealth has the burden, by a preponderance
[ 317 Pa. Super. Page 582]
of the evidence, of showing that it has met the requirements of Pennsylvania Rule of Criminal Procedure 1100(c). Commonwealth v. McNeill, 274 Pa. Super. 257, 418 A.2d 394 (1980). When we review the ruling of a hearing court that the Commonwealth has met this burden, we consider only the evidence presented by the Commonwealth and so much evidence as, fairly read in the context of the record as a whole, ...