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filed: October 12, 1984.


No. 2285 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 551-553 March Term, 1980.


Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Spaeth, President Judge, concurred in the result. Cirillo, J., filed a dissenting opinion. Wickersham, J., filed a dissenting statement.

Author: Popovich

[ 334 Pa. Super. Page 475]

On December 16, 1980, appellant was found guilty of burglary,*fn1 criminal trespass,*fn2 and criminal conspiracy.*fn3 Post-verdict motions were denied and appellant was sentenced on each charge to a period of two years probation to be served concurrently. Appellant contends on this direct appeal that his right to a speedy trial under Pennsylvania Rule of Criminal Procedure 1100 was violated. We find merit in appellant's argument and, accordingly, reverse the judgment of sentence and order appellant discharged.

[ 334 Pa. Super. Page 476]

To respond to appellant's contention, we must review in detail the procedural history of the case. The complaint was filed on October 19, 1979. The mechanical run date for purposes of Pa.R.Crim.P. 1100, 180 days from the filing of the complaint, was April 16, 1980. Appellant's preliminary hearing was continued three times through no fault of the appellant. However, on January 18, 1980, and February 11, 1980, appellant arrived at court late, forcing further delay of the preliminary hearing which was finally held on March 5, 1980. Appellant was arraigned on March 19, 1980, at which time a trial date was set for May 14, 1980. On March 28, 1980, the Commonwealth, pursuant to Pa.R.Crim.P. 1100(c),*fn4 filed its first petition for an extension of time to commence trial. On May 13, 1980, a hearing was held on the extension petition, which was granted and the run date extended to May 16, 1980. On May 14, 1980, a defense witness was unavailable for trial. The defense requested a continuance, and appellant waived his Rule 1100 rights until August 6, 1980. Trial was relisted for July 30, 1980. On that date, the arresting police officer was on vacation and

[ 334 Pa. Super. Page 477]

    the case was again continued to October 7, 1980. On August 4, 1980, the Commonwealth filed its second petition for an extension of time to commence trial. A hearing was held on this petition on October 6, 1980. The court below granted the petition and extended the Rule 1100 run date to October 8, 1980. At that hearing, a defense motion to dismiss for violation of Rule 1100 was denied. On October 7, 1980, a defense witness failed to appear and the case was continued to December 17, 1980. On October 8, 1980, the Commonwealth filed its third petition for an extension of time. A Rule 1100 hearing was held on December 9 and 10, after which the Commonwealth's petition to extend was granted and the Rule extended to December 17, 1980. Appellant was tried on December 16, 1980.

Appellant challenges each of the three extensions, arguing that the Commonwealth failed to show due diligence, that delay was unavoidable and that the following trial listings were the earliest possible dates that trial could be listed. In reviewing the first extension, the court below held that even if the Commonwealth failed to establish due diligence, the May 14 trial date was well within the 180 day period. This conclusion was reached by excluding the 46-day delay that resulted from appellant's tardiness on January 18 and February 11, forcing the preliminary hearing to be continued to March 5. The court below relied on this Court's recent decision in Commonwealth v. Perry, 296 Pa. Super. 359, 442 A.2d 808 (1982), where the defendant's tardiness in appearing for trial resulted in a 22-day delay. Pa.R.Crim.P. 1100(d)(3) requires the exclusion of the period of delay resulting from the unavailability of the defendant or his attorney.*fn5 We agree with the trial court that the 46-day delay in this case should be excluded from the 180 day period. Therefore, we find no error in the lower court's grant of the first extension.

With regard to the second extension, the Commonwealth was to proceed to trial on May 14, but the defense was unprepared and, therefore, waived Rule 1100 for 84 days,

[ 334 Pa. Super. Page 478]

    until August 6.*fn6 At the next listing, on July 30, the Commonwealth was unable to proceed because the arresting officer, an eye-witness to the break-in, was on vacation.

In Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981), we discussed the scope of review and the standard of proof applicable in cases such as the present case:

"'A court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.' Pa.R.Crim.P. 1100(c)." Commonwealth v. Miller, 270 Pa. Super. 178, 182, 411 A.2d 238, 240 (1979). "The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c)." Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). (citations omitted). In reviewing the lower court's ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. See Commonwealth v. Ehredt, supra, 485 Pa. at 193, 401 A.2d at 360. "Thus, when witnesses become unavailable toward the end of the Rule 1100 time period -- whether through vacation, illness, or other reasons not within the ...

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