No. 185 Harrisburg, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 1857 C.D. 1977.
Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Wieand and Cercone, JJ.
[ 326 Pa. Super. Page 59]
Vincent Evans was tried non-jury and was found guilty of recklessly endangering another person because of the manner in which he operated a motor vehicle in the City of Harrisburg on October 10, 1977. He was sentenced to pay a fine and serve a short term of imprisonment in the Dauphin County Prison. On direct appeal, he contends (1) that the information was defective because it contained a rubber stamped facsimile of the district attorney's signature, and (2) that his trial was not held within the time constraints of Pa.R.Crim.P. 1100.
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The first issue raised by appellant is controlled by the decision of the Supreme Court in Commonwealth v. Page 60} Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). The Court there held that a rubber stamped facsimile of the district attorney's signature was sufficient compliance with the requirement of Pa.R.Crim.P. 225(b) that an information be signed by the attorney for the Commonwealth. Therefore, we discuss only the second of appellant's contentions.
Appellant was arrested and a criminal complaint was signed on October 10, 1977. The Rule 1100 run date was April 10, 1978.*fn1 On November 4, 1977, after preliminary hearing, the case was returned to court and appellant was released on bail. The bail certificate did not include the date on which any subsequent court appearance was required. Appellant did not appear for formal arraignment on January 4, 1978, and a capias was issued for his arrest. It was served on June 16, 1981, more than three years later. Trial commenced on August 3, 1981, obviously well beyond the run date. Because no petitions for extension of time had ever been filed, appellant was entitled to have the criminal charge against him dismissed unless the time from January 4, 1978 to June 16, 1981 was excludable. He filed a pre-trial motion to dismiss, which the trial court denied after hearing.
The Commonwealth had the burden of proving that this time was excludable. See: Commonwealth v. Leib, 303 Pa. Super. 272, 276, 449 A.2d 684, 686 (1982); Commonwealth v. Iancovetti, 298 Pa. Super. 441, 444, 444 A.2d 1257, 1259 (1982); Commonwealth v. Goldwire, 279 Pa. Super. 451, 453, 421 A.2d 286, 287 (1980). In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), the Supreme Court held that "a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of the proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without
[ 326 Pa. Super. Page 61]
the requirement of a showing of its efforts to apprehend the defendant during the period of his absence." Id., 481 Pa. at 356, 392 A.2d at 1331 (emphasis added). Proper notice is notice which is reasonably calculated to give actual notice. See: Commonwealth v. Snyder, 280 Pa. Super. 127, 132-133, 421 A.2d 438, 440-441 (1980). If the Commonwealth fails to prove proper notice, it must establish that it was unable to locate the defendant despite the exercise of due diligence. Commonwealth v. Snyder, supra, 280 Pa. Superior Ct. at 133, 421 A.2d at 441. See also: Commonwealth v. Minoske, 295 Pa. Super. 192, 204, 441 A.2d 414, 420 (1982).
"[I]n reviewing a hearing court's ruling that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Leib, supra 303 Pa. Super. at 276-277, 449 A.2d at 686, quoting Commonwealth v. Mitchell, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977). Accord: Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Dixon, 295 Pa. Super. 425, 428, 441 A.2d 1305, 1307 (1982). Although a hearing court's findings will normally command great deference, such findings will be reversed on appeal if the findings are not supported by evidence. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983) (plurality opinion); Commonwealth v. Hall, 475 Pa. 482, 486-487, 380 A.2d 1238, ...