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filed: June 28, 1985.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, at No. 82-10,434.


Peter T. Campana, Williamsport, for appellant.

Kevin H. Way, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Montemuro, Beck and Hester, JJ.

Author: Montemuro

[ 343 Pa. Super. Page 518]

This is an appeal from a judgment of sentence of the Court of Common Pleas of Lycoming County. Appellant, Edward E. Stewart, presents the following issues for our review: whether the trial court erred (1) in granting the Commonwealth's motion to extend the time for trial since he was not brought to trial timely pursuant to Pa.R.Crim.P. 1100; (2) in denying his motion to suppress physical evidence; (3) in not granting his motion for mistrial based on the introduction of prior unrelated criminal activity at trial; (4) in refusing appellant's requested point for charge; and (5) in denying appellant's motion in arrest of judgment alleging a conflict between 18 Pa.C.S. §§ 908, 6102, and 6106. We find these allegations to be without merit, and affirm the judgment of sentence.

On April 20, 1982, a criminal complaint was filed against appellant charging him with violating the prohibited offensive weapons statute,*fn1 receiving stolen property,*fn2 owning a

[ 343 Pa. Super. Page 519]

    firearm as a former convict,*fn3 and altering or obliterating marks of identification.*fn4 Following a trial by jury, appellant was found guilty of possessing a prohibited offensive weapon. Post-verdict motions were denied and on May 6, 1983, appellant was sentenced to a term of imprisonment for a period of not less than fifteen (15) months nor more than four (4) years, and to pay the costs of prosecution. This appeal followed.

Appellant first contends that he was not brought to trial timely pursuant to Pa.R.Crim.P. 1100. Specifically, he argues that the Commonwealth did not produce sufficient evidence at the extension hearing to show due diligence warranting an extension of time for the commencement of trial.

Appellant's case was scheduled for trial the week of October 11, 1982, to October 15, 1982. Upon agreement of counsel and appellant, the deadline was extended to November 19, 1982. The prosecution then filed a motion for an extension of time for commencement of trial pursuant to rule 1100(c). In its motion, the Commonwealth stated that a key and essential Commonwealth witness was scheduled to undergo a kidney operation on November 16, 1982 at the Williamsport Hospital and, thus, he would not be available for trial in November of 1982. Following a rule 1100 hearing, the Commonwealth was granted an extension of time for trial until December 10, 1982. Appellant then requested a continuance and waived rule 1100 until January 14, 1983. Appellant's trial was held January 11, 1983 through January 13, 1983.

The Commonwealth must exercise due diligence in attempting to bring a defendant to trial within the period prescribed by rule 1100. Commonwealth v. Bradford, 339 Pa. Super. 215, 488 A.2d 628 (1985). The burden is on the Commonwealth to prove by a preponderance of the evidence, that it has met the requirements of rule 1100(c).

[ 343 Pa. Super. Page 520]

    however, the witness' illness and hospitalization prevented him from testifying. Thus, the unavailability of the witness occurred despite the Commonwealth's due diligence. An extension may be granted in circumstances where a witness has been hospitalized, since that situation is beyond the Commonwealth's control. Commonwealth v. Reihart, 302 Pa. Super. 515, 449 A.2d 35 (1982).

Appellant also contends that the unavailable witness was not an essential witness because some of his testimony was cumulative to the evidence provided by two (2) other witnesses at trial. We find this argument without merit.

Once the Commonwealth produces testimony that the witness is unavailable it need only provide reasons why the witness is important to its case. Commonwealth v. Schuster, 288 Pa. Super. 310, 431 A.2d 1063 (1981). In Schuster, this court stated:

[U]nless the unavailable witness is one whose testimony is clearly unnecessary or patently cumulative the determination of whether the witness is important to the Commonwealth's case should be left to the exercise of prosecutorial discretion.

This standard provides due recognition to the prosecution's responsibility in determining which witnesses are important to most effectively present the Commonwealth's case while insuring that the defendant's right to a speedy trial is not thwarted by claims of unavailability of unnecessary witnesses. Moreover, we do not believe that an extension or dismissal hearing should evolve into an evidentiary hearing on the admissibility of the evidence which the Commonwealth intends to introduce at trial.

Id., 288 Pa. Superior Ct. at 318, 431 A.2d at 1067.

In the instant case, at the rule 1100 hearing, the Commonwealth testified that the witness was essential because he could testify as to appellant's possession of the sawed-off shotgun and the alteration of the identification marks on a revolver. The trial court in its findings of fact found,

[ 343 Pa. Super. Page 5221]

) That the Commonwealth has established by a preponderance of the evidence the following:

     a) Mr. Walter Moorehouse is a key and essential witness in the Commonwealth's case.

     b) The testimony of Mr. Walter Moorehouse is crucial to the Commonwealth's case.

     c) Mr. Walter Moorehouse is not available for trial on November 18th or 19th because of a recent kidney operation.

     d) The Commonwealth has used due diligence in the preparation of this case but is unable to proceed because of the absence of ...

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