No. 1700 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 2636 April Term, 1981.
Harvey L. Anderson, Philadelphia, for appellant.
Carolyn E. Alden, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Hester and Roberts, JJ.
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This is a direct appeal from appellant's judgment of sentence. Appellant shot the unarmed victim with a sawed-off rifle after the victim borrowed appellant's automobile
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without permission. Following a non-jury trial, appellant was adjudged guilty of a variety of charges stemming from this incident.*fn1 Appellant raises three issues on appeal, none of which has merit. Specifically, appellant argues a violation of Pa.R.Crim.P. 1100, ineffectiveness of trial counsel for failing to obtain witnesses, and abuse of discretion by the sentencing judge. Having closely reviewed appellant's assertions, we conclude that relief is not warranted. Hence we affirm.
In appellant's initial argument, he contends that the Commonwealth failed to prove due diligence in its efforts to comply with Rule 1100.*fn2 Appellant's contention that the Commonwealth failed to act with due diligence centers on the absence of the complaining witness on the September 16, 1981, trial date. Consequently, he submits that the extensions granted to the Commonwealth were improper, and that he should be discharged.
Appellant was arrested on March 29, 1981, thereby establishing a run date of September 25, 1981. On September 18, 1981, the Commonwealth filed a motion to extend time in which to commence trial. It alleged therein that the victim, who was the sole eyewitness, had failed to appear for trial on three separate occasions in spite of a subpoena and a bench warrant. A hearing was scheduled for October 29, 1981, but at the request of the defense was continued until January 13, 1982.*fn3 After the witness failed to appear on January 13, 1982, the Commonwealth amended its petition to aver that the complaining witness had been injured and was unable to attend trial. A Rule 1100 hearing was conducted on February 23, 1982, at which time the court
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granted the Commonwealth's petition and ordered that appellant be tried on February 24, 1982.
It is well settled that the Commonwealth, in order to obtain an extension of time pursuant to Rule 1100(c), need only prove that reasonable efforts were made to secure a witness' attendance. Commonwealth v. Wroten, 305 Pa. Super. 340, 451 A.2d 678 (1982); Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981). While the Commonwealth must demonstrate that it employed reasonable means to insure the appearance of the witness, it is not necessary that all methods be exhausted in order to establish due diligence. ...