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filed: December 28, 1984.


NO. 00029 Philadelphia, 1984, Appeal from the Order Entered December 7, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-07-1977-1978.


Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellee.

Montemuro, Beck and Watkins, JJ. Deck, J., concurred in the result.

Author: Watkins

[ 337 Pa. Super. Page 24]

This is a Commonwealth appeal from the grant of a motion to dismiss pursuant to Pa.R.Crim.Pro. 1100(f) by the Philadelphia Court of Common Pleas. On appeal, the Commonwealth contends the trial court erred in granting appellee's pre-trial application to dismiss because of the Commonwealth's failure to bring him to trial within 180 days of the complaint's filing.

The complaint was filed and an arrest warrant was issued on May 12, 1980. The run date, therefore, was November 10, 1980. Appellee was not apprehended on the present charges of recklessly endangering another person and simple and aggravated assault until July 8, 1983. At a hearing held ten days later, defendant was held for court on all charges. On July 21, 1983, the Commonwealth petitioned to extend the time for trial under Pa.Rule Crim.Pro. 1100(c) based upon the premise that defendant's unavailability from the filing of the complaint until defendant's arrest was excludable time under Rule 1100, thereby automatically extending the time for trial until January, 1984. After hearing, the trial court denied the Commonwealth's request for an extension and granted appellee's application to dismiss.

[ 337 Pa. Super. Page 25]

The critical issue is whether the Commonwealth's application for an extension of time was filed prior to the expiration of the mandatory period of 180 days. See, Commonwealth Page 25} v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). This, in turn, depends upon whether the entire three year period between the filing of the complaint and appellee's arrest is excludable. The appellee argued and the lower court found the pre-arrest period involved two stages, one during which due diligence was exercised and one during which it was not. The latter stage being greater than 180 days, the motion to dismiss was granted. We are constrained to disagree.

Pa.Rule Crim.Pro. 1100(d) provides in part that "(i)n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant . . ." The comment to the Rule suggests that a defendant is unavailable "for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence."

The Commonwealth has the burden of proving, by a preponderance of the evidence, that the police exercised due diligence in trying to locate the accused. Commonwealth v. Dorsey, 294 Pa. Superior Ct. 584, 440 A.2d 619 (1982); Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Mitchell, 472 Pa. 553, 564 n. 5, 372 A.2d 826 (1977). The Commonwealth's evidence of diligence consisted solely of the testimony of the assigned detective, Sergeant Daniel Farley. Detective Farley testified he made approximately thirty separate attempts to arrest the defendant from May 13, 1980 until August of 1982, as well as bimonthly surveillances of defendant's neighborhood which he conducted for the next ten months. Defendant's family had filed an harrassment complaint with the police department claiming defendant did not live at the home address. Sergeant Farley contacted defendant's employer who told him the defendant had not picked up his last pay check. In addition, Sergeant Farley made various record checks which included entering defendant's name into the national crime

[ 337 Pa. Super. Page 26]

    information computer on June 5, 1980, contacting the Bureau of Motor Vehicles in Harrisburg, checking with voter registration, and making a criminal record check through the police department records division. In August, 1982, Detective Farley was transferred to another division and the actual police search for defendant, actively conducted for more than two years, was apparently discontinued. Despite evidence of Sergeant Farley's continuous and ...

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