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COMMONWEALTH PENNSYLVANIA v. DAVID E. TYLER (02/22/89)

filed: February 22, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DAVID E. TYLER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division at No. 50 Cr. Action 1987.

COUNSEL

Bruce P. Blocher, York, for appellant.

Mark A. Bellavia, Assistant District Attorney, York, for the Com., appellee.

Kelly, Popovich and Hester, JJ.

Author: Popovich

[ 382 Pa. Super. Page 386]

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of York County following the appellant's conviction on the charges of rape, involuntary deviate sexual intercourse and robbery. The appellant, David E. Tyler, asserts that the Commonwealth did not exercise due diligence in bringing his case to trial, and, as a result, the trial court erred in denying his motion in arrest of judgment based on the Pennsylvania Rules of Criminal Procedure, Rule-1100.*fn1 After reviewing the circumstances surrounding this case, we affirm this judgment of sentence.

[ 382 Pa. Super. Page 387]

The record reveals the following procedural history: On November 21, 1986, criminal complaints were filed against the appellant, charging him with rape, robbery and involuntary deviate sexual intercourse. Thus, May 20, 1987 was the mechanical run-date for the appellant's trial period under the operation of Rule 1100. At his arraignment on January 29, 1987, the appellant was represented by the Public Defenders Office of York County.

On May 19, 1987, the appellant filed a motion for trial postponement which was unopposed by the Commonwealth. This waiver gave the Commonwealth 120 days from May 21, 1987 to bring the appellant to trial. On May 20, 1987, the Commonwealth filed a petition for extension of the trial date alleging the unavailability of a Commonwealth's witness, the victim. This petition was granted on June 19, 1987, extending the trial period to no later than June 26, 1987. The appellant did not oppose this extension.

On June 17, 1987, the Commonwealth filed a second petition to extend the time for commencement of trial, again alleging the unavailability of the victim. The appellant opposed this petition through privately retained counsel, responding that the Commonwealth had not exercised due diligence in bringing the case to trial. On June 29, 1987, the Commonwealth filed an amended petition to extend. In addition to the unavailability of the victim, the Commonwealth alleged that plea bargain negotiations were on-going and that the appellant had agreed to a continuance to allow his private counsel to take on the case. A hearing was held on July 31, 1987, at which time the petition was granted.

On August 21, 1987, the appellant was convicted on all charges. The appellant filed a motion in arrest of judgment based upon a violation of Rule 1100. Ruling upon that motion, the trial court determined that the Commonwealth did not exercise due diligence in bringing the appellant to trial. However, the court ruled that the appellant was not prejudiced by the delay and, therefor, was not entitled to have the charges dismissed. This appeal followed.

[ 382 Pa. Super. Page 388]

We agree with the trial court that the Commonwealth failed to exercise due diligence. The Commonwealth bears the burden of proving prosecutorial due diligence by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 195-196, 401 A.2d 358, 360-361 (1979); Commonwealth v. Thomas, 361 Pa. Super. 1, 9-11, 521 A.2d 442, 447 (1987). When reviewing the evidence, we will consider evidence presented by the Commonwealth and evidence which remains uncontradicted by the record as a whole. Ehredt, 401 A.2d at 360-361; Thomas, 521 A.2d at 447; Commonwealth v. Hollingsworth, 346 Pa. Super. 199, 206, 499 A.2d 381, 384 (1985).

In Commonwealth v. Cottman, 327 Pa. Super. 453, 476 A.2d 40 (1984), we ruled upon the identical issue now before us. Therein, we stated:

It is well settled that the Commonwealth in order to obtain an extension of time pursuant to Rule 1100(c), need only prove that reasonable efforts were made to secure a witness' attendance. Commonwealth v. Wroten, 305 Pa. Super. 340, 451 A.2d 678 (1982); Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981). While the Commonwealth must demonstrate that it employed reasonable means to insure the appearance of the witness, it is not necessary that all methods be exhausted in order to establish due diligence. Commonwealth v. ...


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