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filed: August 4, 1986.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Dauphin County, Criminal Division, No. 1717(B) C.D. 1984


Spero T. Lappas, Harrisburg, for appellant.

William A. Behe, Chief Deputy District Attorney, Harrisburg, for Com., appellee.

Cirillo, President Judge, Tamilia and Hester, JJ.

Author: Tamilia

[ 355 Pa. Super. Page 579]

This is an appeal from judgment of sentence entered after a jury found appellant guilty of first degree murder, robbery, and simple assault. The same jury further determined that appellant's sentence for the first degree murder conviction would be life imprisonment. The court then imposed a life sentence with an additional two to five years imprisonment on the remaining counts.

The lower court accurately summarized the pertinent facts as follows:

On March 15, 1984, an unmasked gunman entered the Thrift Drug Store located on South 29th Street in Harrisburg and demanded money from the cashier, Shavona Mitchell. The cashier placed the cash drawer in a paper bag and handed the package to the gunman. The gunman departed from the store and walked along the front of the store toward the Weis Market, located adjacent to the store. Spencer W. Arnold, Jr., a security guard employed by the Thrift Drug Store was summoned by the clerk and he immediately gave chase to the gunman. Arnold apprehended the gunman and started to walk him back to the drug store. Approaching the store, the gunman grabbed Arnold, threw him against the fence, pulled out a gun and shot him.

The gunman ran to his car and drove from the Weis Market parking lot at a high rate of speed. The gunman, later identified as Eric Maxwell, [appellant herein], drove to his sister's house where several friends were gathered. These friends later drove Maxwell to the York bus terminal where he boarded a bus bound for Baltimore. At the Baltimore bus station he was placed into custody on unrelated firearm charges. (Slip Op. at 1)

Appellant now raises ten issues for our review. He first contends the lower court erred in denying his motion to dismiss the charges pending against him based on a violation of Pa.R.Crim.P. 1100. In the instant action, the complaint against appellant was filed on March 16, 1984, and the case was not called for trial until November 12, 1984;

[ 355 Pa. Super. Page 580]

    two months beyond September 12, 1984, the one-hundred eighty day run date as required by Pa.R.Crim.P. 1100.

Pa.R.Crim.P. 1100(a)(2) provides that;

"Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed."

Pa.R.Crim.P. 1100(b) further provides that;

"For the purposes of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, . . ."

However, Pa.R.Crim.P. 1100(d)(3)(i) states;

"(d) In determining the period for commencement of trial, there shall be excluded therefrom:

(3) Such period of delay at any stage of the proceedings as results from:

(i) the unavailability of the defendant . . ."

In the case sub judice, appellant was arrested in Baltimore on March 15, 1984 and was not returned to Dauphin County to stand trial on the charges herein until July 16, 1984. Upon motion of the Commonwealth for an extension of time to bring appellant to trial, the lower court found that the period of time the defendant spent in Maryland's custody was excludable from the computation of the one hundred and eighty days. We agree.

It is well settled in this Commonwealth that while mere incarceration in another jurisdiction does not make a defendant "unavailable" for purposes of Rule 1100(d), he will be deemed "unavailable" for the period of time during which his presence cannot be secured despite the due diligence of the Commonwealth. Commonwealth v. Haynes, 339 Pa. Super. 165, 168, 488 A.2d 602, 605 (1985). Due diligence must be defined on a case by case basis and requires a showing by the Commonwealth that a reasonable effort has been made to secure the defendant's attendance at trial; it does not require perfect vigilance and punctilious

[ 355 Pa. Super. Page 581]

    care. Commonwealth v. DeMarco, 332 Pa. Super. 315, 319, 481 A.2d 632, 636 (1984). In reviewing a lower court's determination of whether the Commonwealth has met its burden of proving due diligence, this Court will consider ". . . only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted." Commonwealth v. Donaldson, 334 Pa. Super. 473, 476, 483 A.2d 549, 552 (1983). Also, absent an abuse of discretion, a grant of extension of time will not be overruled on appeal. Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983).

We find that the Commonwealth, without question, acted diligently in its efforts to return Maxwell to Dauphin County. A review of the pertinent dates testified to at the continuance hearing clearly supports this conclusion.

March 19, 1984 -- District Attorney's Office contacts Commonwealth's attorney in Baltimore and furnishes information that Dauphin County desires to try Mr. ...

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