filed: February 8, 1985.
COMMONWEALTH OF PENNSYLVANIA
LLOYD MARTIN MCCUTCHEON, APPELLANT
NO. 00510 PITTSBURGH 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Crawford County, Criminal No. 1982-685
William L. Walker, Meadville, for appellant.
John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.
Spaeth, President Judge, and Brosky and Montgomery, JJ.
[ 339 Pa. Super. Page 11]
This is an appeal from judgment of sentence for driving under the influence of alcohol.*fn1 Appellant argues that the trial court improperly granted the Commonwealth's petition for an extension of time under Pa.R.Crim.P. 1100. We agree and therefore reverse the judgment of sentence and discharge appellant.*fn2
The criminal complaint was filed on March 1, 1982. After a preliminary hearing on April 6, 1982, appellant was held over for court. A member of the District Justice's staff misfiled the papers on appellant's case; instead of transmitting them to the County Clerk of Court, she filed them in the "closed file." N.T. 12/13/82, 11. In November 1982 appellant's counsel happened to meet the police officer who had filed the complaint. Counsel asked the officer about the case. The officer said he would check into it, and telephoned the District Attorney's office, to be told that the papers had never been received, N.T. 12/13/82, 6-7.*fn3 On November 12, 1982, a member of the District Attorney's office called the District Justice's office, and, upon learning about the misfiling, directed that the papers be sent to the courthouse immediately. N.T. 12/13/82, 12. On November 15, 1982, the complaint and transcript were filed. On November 30, 1982,*fn4 the Commonwealth filed a petition for an extension of time under Rule 1100, identifying the source of the delay and alleging its "due diligence." Appellant filed an answer and moved for a dismissal of the charges against him. The trial court denied appellant's
[ 339 Pa. Super. Page 12]
motion and granted the petition for an extension. Appellant was tried and convicted, and after being sentenced, took this appeal.
A petition for an extension of time must be filed "prior to the expiration of the period for commencement of trial." Pa.R.Crim.P. 1100(c)(1). The "period for commencement of trial" is 180 days. Pa.R.Crim.P. 1100(a)(2). In counting these 180 days, certain days are excluded. Pa.R.Crim.P. 1100(d). Specifically, "there shall be excluded": the period between the filing of the complaint and the defendant's arrest, where the defendant's whereabouts were unknown and could not be determined by due diligence; any period for which the defendant waives the rule; and such period as results either from the unavailability of the defendant or his attorney, or from a continuance granted at the request of the defendant or his attorney. Id. Here, there was no period fitting any of these categories. The only period in question was the period from April 6, 1982 (the date of the preliminary hearing) to November 12, 1982 (the date the District Justice's office discovered that the papers had been misfiled). This period may not be excluded -- nor does the Commonwealth claim that it may be -- for judicial delay*fn5 is not excludable under Rule 1100(d). Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Ellison, 249 Pa. Super. 339, 378 A.2d 325 (1977). Since no days may be excluded, the 180 day period for the commencement of appellant's trial ended August 30, 1982.*fn6 Accordingly, the Commonwealth's petition for an
[ 339 Pa. Super. Page 13]
extension of time, not being filed until November 15, 1982, was not filed "prior to the expiration of the period from commencement of trial", Pa.R.Crim.P. 1100(c), and should have been denied. Commonwealth v. Shelton, supra (application for extension must be filed prior to expiration of period).
The Commonwealth argues that its petition for an extension of time was properly granted because it exercised "due diligence." This argument, however, is not available to the Commonwealth. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977); Commonwealth v. Franklin, 306 Pa. Super. 382, 452 A.2d 777 (1982). Cf. Commonwealth v. Bolden, 336 Pa. Super. 243, 485 A.2d 785 (1984) (timely petition to extend improperly denied where clerk erroneously recorded that all charges against defendant had been dropped, district attorney arranged to have case reopened, and date for trial not set before run date); Commonwealth v. Harris, 315 Pa. Super. 544, 462 A.2d 725 (1983) (timely petition to extend properly granted for delay caused by defendant not having been brought from jail due to Trial Coordinator's error and next available court date beyond run date); Commonwealth v. Wroten, 305 Pa. Super. 340, 451 A.2d 678 (1982) (timely petition to extend improperly denied where defendant not brought to court because defendant transferred without notice to court, district attorney asked that defendant be brought down the next day; and where next available court date beyond run date); Commonwealth v. Lewis, 287 Pa. Super. 64, 429 A.2d 721 (1981) (timely petition to extend properly granted where court administrator failed to recall case and this delay was attributable to court and where rescheduling resulted in trial date beyond run date).
Even if the Commonwealth did have available the argument that it exercised due diligence, we should find the
[ 339 Pa. Super. Page 14]
argument without merit. It was the Commonwealth's burden to prove due diligence in the prosecution of appellant. See Commonwealth v. Jones, 314 Pa. Super. 515, 461 A.2d 276 (1983). While it is clear that the Commonwealth was diligent once it learned that the papers on appellant's case had been misfiled in the District Justice's office, there is no evidence on the record that it exercised due diligence between the filing of the complaint and the date on which it learned that the papers had been misfiled. See Commonwealth v. Walls, 303 Pa. Super. 284, 449 A.2d 690 (1982) (proof of due diligence must appear on record). So far as appears, the Commonwealth had no system to assure that cases held for court, especially those in which the Commonwealth attorney was not present at the preliminary hearing, were properly processed. Such a failure in recordkeeping "precludes a finding of due diligence." Commonwealth v. Metzger, 249 Pa. Super. 107, 113, n. 4, 375 A.2d 781, 784, n. 4 (1977) (citations omitted). Although the standard of due diligence does not require the Commonwealth to exercise every conceivable effort, it does require the Commonwealth to make reasonable efforts. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Colon, 317 Pa. Super. 412, 464 A.2d 388 (1983). Here the record is devoid of evidence of any effort to follow cases in which a preliminary hearing has been held where a Commonwealth attorney is not present and the defendant is bound over for court. Except for the happenstance of appellant's counsel asking the police officer about the status of the case, the Commonwealth would evidently continue to be unaware of the case. "It is clear that the burden of seeing that trial is commenced rests on the Commonwealth, not the defendant." Commonwealth v. Bennett, 320 Pa. Super. 150, 155, 466 A.2d 1362, 1364 (1983).
Judgment of sentence reversed and appellant discharged.