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COMMONWEALTH PENNSYLVANIA v. MICHAEL EDWIN JOHNSON (05/13/85)

submitted: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MICHAEL EDWIN JOHNSON, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, No. 195 of 1983.

COUNSEL

Richard E. Bower, Assistant Public Defender, Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, files a concurring and dissenting opinion.

Author: Wieand

[ 348 Pa. Super. Page 357]

In this appeal from a sentence of imprisonment imposed following convictions for robbery, theft and criminal conspiracy, Michael Edwin Johnson's principal contention is that he was not tried within the time constraints of Pa.R.Crim.P. 1100(e)(1). Finding no merit in this contention or in any of the arguments advanced by appellant for a new trial,*fn1 we affirm.

Johnson was arrested on January 4, 1983. His trial began on August 1, 1983. However, on August 2, 1983, a mistrial was declared because the jury was unable to agree upon a verdict. On December 20, 1983, after hearing, the trial court granted a timely request by the Commonwealth for an extension of time under Rule 1100 because the victim, Lyle Reynolds, had been ill and unavailable for trial when the case had been scheduled for trial in November. On February 21, 1984, another extension was granted because the victim was still ill. On March 6 and 7, 1984,

[ 348 Pa. Super. Page 358]

    within the extension allowed by the court, appellant was tried by jury and convicted.

Appellant argues that the trial court erred in granting the several Commonwealth requests for extensions. He contends that at both hearings the court improperly allowed hearsay evidence of the victim's illness. In the absence of this hearsay, he suggests, the Commonwealth failed to prove that it was unable to commence trial within the prescribed period by the exercise of due diligence.

At the first extension hearing, Trooper James Anthony was the only witness to testify. He testified that he had been in contact with the victim, Lyle Reynolds, and had been told that he was ill and could not appear for trial. (N.T. 12/20/83 at 2, 4). Trooper Anthony testified that he had also gone to the office of Reynolds' physician and had obtained letters, signed by the doctor, confirming that Reynolds was ill and could not appear for trial. Defense counsel objected to this testimony on grounds that it was hearsay. (N.T. 12/20/83 at 3). The court allowed Trooper Anthony to testify to what the letters said and admitted the letters into evidence as business records. (N.T. 12/20/83 at 5-6, 7). Appellant argues that Trooper Anthony's testimony and the doctor's letters were hearsay and should not have been received.

At the second hearing, Trooper Anthony testified that he had again spoken to Reynolds, who told him that he was still ill and unable to attend a trial. The trooper testified that he again went to the doctor's office and obtained a letter, signed by the doctor, stating that Reynolds was ill and unable to appear. This time the court ruled that the letter was inadmissible as hearsay. (N.T. 2/21/84 at 6). Nevertheless, the extension was granted.

The Commonwealth had the burden of proving the exercise of due diligence by a preponderance of the evidence. See: Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979); Commonwealth v. Bulling, 331 Pa. Super. 84, 90,

[ 348 Pa. Super. Page 359480]

A.2d 254, 257 (1984); Commonwealth v. Lamb, 309 Pa. Super. 415, 423, 455 ...


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