No. 437 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, at Nos. 2003-04, April Term, 1978.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Popovich and Watkins, JJ. Popovich, J., files a dissenting opinion.
[ 319 Pa. Super. Page 35]
On November 8, 1978, following a non-jury trial before the Honorable Thomas N. Shiomos, appellant, Antoine Lewis, was found guilty of attempted burglary and possessing instruments of crime. Post-verdict motions were denied, and appellant was sentenced to probation for five years on the charge of attempted burglary and a concurrent term of three years of probation on the charge of possessing instruments of crime. Appellant took this appeal.*fn1
We adopt Judge Shiomos' summary of the facts in this case:
At the trial of the case, Police Officer Thomas Barta testified that on April 11, 1978, at about two-thirty A.M., he received a radio call and that within 30 seconds, he arrived at 67th and Ogontz Avenue and observed a negro male [defendant] walking away from the side entrance of the [Merit] Television Shop located there. At that time, there was no other person in view. The defendant was
[ 319 Pa. Super. Page 36]
some five to fifteen feet from the side entrance. Upon exiting his auto, the police officer noticed that there was a claw hammer, two screw drivers and a pair of pliers on the ground. He also noticed that the door knob to the side entrance had been removed. At that point, the police officer stopped the defendant and found on his person a chisel and a flash light. See N.T. pp -9.
In view of these facts, we find no merit to appellant's contention that the evidence was insufficient to sustain his convictions for attempted burglary and possessing instruments of crime.
Appellant seeks to be discharged because his trial was held thirty-one (31) days after the one hundred and eighty (180) calendar day mandate of Pa.R.Crim.P. 1100. We hold that the Commonwealth filed a timely application for extension of time and proved to the satisfaction of the lower court that despite due diligence, the Commonwealth was unable to try the defendant within one hundred and eighty (180) calendar days from the date the complaint was filed.
The relevant procedural history of this case, as set forth in appellant's brief, is, for the most part, uncontested. See Brief for Appellant at 3-4. Appellant was arrested and a complaint filed against him on April 11, 1978, resulting in a mechanical rundate, under Rule 1100, of October 8, 1978. At the first trial listing on June 21, 1978, the Commonwealth was unable to proceed to trial because a Commonwealth witness was unavailable. On August 3, 1978, the case was listed in error. The next listing was on August 31, 1978, pursuant to a memorandum from a court trial coordinator. The Commonwealth was then unable to proceed to trial because the arresting officer was on vacation. At the fourth listing, ...