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filed: September 20, 1985.




Nicholas J. Caniglia, Wayne, for appellant.

Helen Kane, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo,*fn** Del Sole, Johnson, Popovich and Cercone,*fn* JJ. McEwen, J., files a concurring opinion. Spaeth, President Judge, files a dissenting opinion in which Wieand and Del Sole, JJ., join. Cercone, J., did not participate in the final disposition of this case.

Author: Cirillo

[ 346 Pa. Super. Page 204]

This case raises an issue concerning the Commonwealth's burden of proof on a petition for an extension of time to commence trial under Pennsylvania's speedy trial rule, Pa.R.Crim.P. 1100.

The appellant, Anna Hollingsworth, was tried by jury and convicted of maintaining lotteries and premises for illegal gambling, 18 Pa.C.S. ยงยง 5512, 5513. On appeal to this Court, a divided three-judge panel held that the Commonwealth had failed to prove its entitlement to an extension under Rule 1100(c), and therefore that the defendant's right to a speedy trial had been violated; the panel ordered the defendant discharged. The Commonwealth petitioned for reargument, which the Court en banc granted. We now affirm the judgment entered in the trial court.

A criminal complaint against Hollingsworth was filed on November 12, 1980. Under Rule 1100(a)(2), the 180-day rule, the Commonwealth therefore had until May 11, 1981 to bring the defendant to trial. On April 9, 1981, the Commonwealth filed an application under Rule 1100(c) to extend time for commencement of trial, alleging seven grounds in support of its request. A hearing was set for May 11, the Rule 1100 run date. On that day, the Commonwealth amended its petition to include as a reason for the extension that: "On May 11, 1981 the Commonwealth's expert witness will be unavailable for a period of 2 weeks due to his attendance at Drug Enforcement School sponsored by the Department of Justice." At the hearing, the attorney for the Commonwealth stated:

[ 346 Pa. Super. Page 205]

I was also informed, Your Honor, last week that one of the Commonwealth's necessary witnesses, in the event the case did go to jury trial today, is unavailable for the next two weeks because he is involved in drug enforcement school sponsored by the Department of Justice.

Mr. Breen (the defendant's attorney) responded to the Commonwealth's presentation as follows:

It would be our position that the District Attorney's Office has not exercised due diligence in trying to bring this case to trial to this date . . . .

Our position is, Your Honor, that a mere assertion that due diligence was exercised is insufficient to allow for the granting of extension of time. If there was a showing, more extensive showing, that this case could not have been brought before the Court, then possibly our position would alter, but I don't believe on the face of what the District Attorney has presented today that an extension has been shown to be necessary.

Neither party offered testimony in support of its position. At the conclusion of the hearing, the court granted an extension through July 6, 1981 "because of the unavailability of Commonwealth witnesses [sic]".

We must now determine whether the court properly granted the extension without requiring actual testimony as to the absence of the Commonwealth's witness.

In reviewing the propriety of an extension order, this Court is guided by our Supreme Court's pronouncement in Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976):

[ 346 Pa. Super. Page 206]

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the "due diligence" of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

At issue is the first requirement under Mayfield, namely the "due diligence" of the prosecution.

The burden of proving prosecutorial due diligence rests on the Commonwealth under the standard set out in Commonwealth v. Ehredt, 485 Pa. 191, 194, 195-96, 401 A.2d 358, 360-61 (1979):

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court's ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.

Although the preponderance standard is the least burdensome standard of proof known to the law, Commonwealth v. Mitchell, supra, a bare statement by the Commonwealth's attorney that several witnesses are "unavailable," without more, does not establish "due diligence" within that standard. While the unavailability of a witness may be a relevant factor in determining whether an extension should be granted, see Commonwealth v. Brown, 252 Pa. Super. 365, 381 A.2d 961 (1977), "[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c)."

[ 346 Pa. Super. Page 207]

    speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n. 4, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system . . . .

See also Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983).

In applying these pronouncements to the case before us, two things clearly stand out: first, there was no attempt on the part of the Commonwealth to evade the 180-day mandate of Rule 1100; and second, on the contrary, it is obvious that the Commonwealth's good faith efforts to try the defendant within the appropriate period were frustrated at the last minute by the unanticipated absence of a principal witness.

In its original application for the extension, the Commonwealth recited seven allegations to support a finding that it had proceeded with due diligence to try this case before the run date: (1) the defendant was arrested on 11/12/80 and applied for public defender representation; the public defender

[ 346 Pa. Super. Page 209]

    was appointed to represent the defendant and several co-defendants for a preliminary hearing on 11/24/80; (2) the defendant was arraigned on 12/12/80 after appearing late for arraignment on 12/11/80; (3) due to conflicts of interest in public defender representation the court appointed John Breen as counsel for the defendant on 1/30/81; (4) new counsel filed a petition for leave to file pre-trial motions nunc pro tunc and the petition was granted 2/12/81; (5) pre-trial motions were heard 3/23/81 with a decision on the motions held in abeyance; (6) when the case was called for jury trial on 3/30/81 counsel advised the court that the defendant was in the hospital and wouldn't be available till later that week; due to higher priority matters the case was carried over to the next week; (7) on 4/6/81 the court continued the trial to 5/11/81 because of higher priority matters that had to be tried first and because the defendant had to appear in another courtroom to have a governor's warrant from the State of Delaware served on her. Of course, the Commonwealth's allegation of these facts in its petition did not immediately establish them as true. However, we note that despite the passage of a month's time between receipt of this application and the Rule 1100 hearing, the defendant filed no answer of record denying the truth or relevance of any of the Commonwealth's allegations.

On the May 11 hearing date (also the run date and scheduled trial date), the Commonwealth supplemented its petition with the new allegation that it had recently learned that Sergeant Conway, a necessary witness for the prosecution, would be attending drug enforcement school and hence would be unavailable for the next two weeks. The amendment to the petition also set forth that the Commonwealth had requested no prior continuances or extensions in the case. Of course, up to that time the defendant had not had an opportunity to deny these latest allegations. However, the hearing itself was her ...

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