No. 2763 Philadelphia, 1982, Appeal from the Judgment of Sentence of September 21, 1982, Court of Common Pleas, Philadelphia County, Criminal Division, Nos. 2354-77, April Term, 1982.
Barnaby Wittels, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Tamilia, Johnson and Hester, JJ.
[ 332 Pa. Super. Page 396]
Appellant was convicted of four counts of robbery,*fn1 one count each of simple*fn2 and aggravated assault,*fn3 conspiracy*fn4 and carrying a firearm on a public street or public property,*fn5 following a non-jury trial on July 7, 1982. He was sentenced to 2 1/2 to 10 years on one of the robbery convictions and a consecutive term of 2 1/2 to 5 years for aggravated assault. Sentence was suspended on all other convictions. This direct appeal followed.
The charges resulted from appellant's participation in a robbery on October 22, 1981. Appellant and two co-conspirators entered the home of one William Green, trained weapons on the occupants and ordered those present to lie on the floor. Appellant searched the pockets of the occupants, taking whatever money he found. Upon departing, appellant fired a shot into the room.
The sole issue raised on appeal concerns whether the trial court erred in extending time for trial pursuant to Pa.R.Crim.P. 1100 (Rule 1100).
Charges were filed on October 26, 1981.*fn6 Appellant was arrested and arraigned on November 2. The preliminary hearing set for November 6 was continued to November 12, as appellant did not have counsel, nor was he brought down from his place of incarceration on that date. On November
[ 332 Pa. Super. Page 39712]
, appellant did not appear and a bench warrant was issued. The case was next listed for a preliminary hearing on March 19, 1982, but was continued on that date for appointment of new counsel. Following new counsel's appointment on March 25, 1982, the preliminary hearing was held on April 20, 1982 and appellant held for court.
The Commonwealth's petition to extend was filed April 22, 1982. Defense counsel requested a continuance on May 14 which was granted until May 28. On May 19, defense counsel filed an answer and motion to dismiss under Rule 1100(f). The hearing on the petition to extend and the motion to dismiss was held May 28, at which time the extension petition was granted and time for trial extended to July 19. Trial commenced July 7, 1982.
Appellant argues that the trial court erred in excluding various time periods and extending time for trial. The Commonwealth has the burden of showing, by a preponderance of the evidence, that trial cannot be commenced within the time prescribed by Rule 1100, despite the Commonwealth's due diligence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Dancy, 317 Pa. Super. 578, 464 A.2d 473 (1983). See also Pa.R.Crim.P. 1100(c). When we review the ruling of the trial court that the Commonwealth has met this burden, we consider only the evidence presented by ...