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filed: July 26, 1989.


Appeal Number 520 Philadelphia 1987 from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division 722, 723, 725, 726, 727 and 729 April T., 1984; Eugene H. CLARK, Judge.


Stanley E. Gever, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Cirillo, President Judge, files a dissenting opinion. Brosky and Tamilia, JJ., dissent.

Author: Per Curiam

[ 386 Pa. Super. Page 184]


AND NOW, to wit, this 26th day of July it is hereby ORDERED that the prior Order of this Court denying the Commonwealth's petition to supplement the record and file the notes of testimony of the hearing held on July 8, 1985 before the Honorable Eugene H. Clarke is vacated. The Commonwealth is hereby granted leave to file the transcript of the hearing of July 8, 1985, within twenty (20) days of the date hereof.

CIRILLO, President Judge, dissenting.

I respectfully dissent from the majority's order because I do not believe that, in this case, the Commonwealth has the burden to ensure that the record on appeal is complete. Moreover, I submit that once the Commonwealth has been granted an extension of time in which to bring the defendant to trial, its responsibility to show that it acted with due diligence is complete; this responsibility to act with due diligence does not follow the Commonwealth so as to nullify the rules of appellate procedure governing preparation and transmission of the record. See Pa.R.A.P. 1911-35.

This case is before us pursuant to the per curiam order dated April 15, 1988, wherein this court granted en banc

[ 386 Pa. Super. Page 185]

    reargument of a panel decision dated February 1, 1988. Hawk was arrested on March 18, 1984, and charged with numerous offenses. Accordingly, the mechanical run date under Pa.R.Crim.P. 1100(a)(2) was September 14, 1984.*fn1 On August 23, 1984, the Commonwealth filed a petition for extension under Pa.R.Crim.P. 1100(c) or (d).*fn2 Prior to September 14, 1984, the run date, no hearing had been held. On October 10, 1984, Hawk filed a motion to dismiss under

[ 386 Pa. Super. Page 186]

Pa.R.Crim.P. 1100(f).*fn3 According to a handwritten notation on the record, made by the trial court, a hearing was held on July 8, 1985, at which time the trial court granted the Commonwealth's petition, extended the time in which the Commonwealth had to bring Hawk to trial until November 21, 1985, and denied Hawk's motion to dismiss. On June 12, 1986, Hawk was tried and convicted of robbery, theft by unlawful taking, theft by receiving stolen papers, simple assault, possession of instruments of crime, and unlawful restraint. Post-trial motions were filed, denied by the court, and Hawk was sentenced. Hawk then filed a direct appeal.

Hawk appealed from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County, sentencing him to concurrent terms of imprisonment of five to ten years for robbery, five to twenty-five months for simple assault, and eight to sixty months for unlawful restraint. A panel of this court addressed Hawk's claim that the Commonwealth failed to use due diligence in bringing him to trial and, as a result, he was denied his right to a speedy trial. Specifically, Hawk stated that the hearing on the Commonwealth's petition to extend and on his motion to dismiss was not held until 298 days following the mechanical run date and thus the provisions of Rule 1100 were violated. The panel noted that this court has consistently disapproved of delays in the holding of hearings on petitions for extensions. See e.g. Commonwealth v. Yant, 314 Pa. Super. 442, 461 A.2d 239 (1983). A delay, however, will not be grounds for discharging a defendant absent a showing of prejudice. See Commonwealth v. Derrick, 322 Pa. Super. 517,

[ 386 Pa. Super. Page 187469]

A.2d 1111 (1983). The panel found that Hawk did not suffer any prejudice, notwithstanding Hawk's allegations that if his trial had been held earlier and if his motion to dismiss had been acted upon more expeditiously, he might have been acquitted.

Hawk also claimed that the Commonwealth did not establish a record showing that it acted with due diligence and that the trial was scheduled for the earliest date consistent with the court's business. The panel noted that the Commonwealth has the burden of proving it met the aforementioned requirements, by a preponderance of the evidence. After reference to applicable case law, the panel concluded that because the notes of testimony from the July 8, 1985 hearing were not included in the original record and because the Pa.R.A.P. 1925 opinion filed by the Honorable Eugene H. Clarke could not constitute record judicial notice of the testimony presented at that hearing, the Commonwealth had not sustained its burden of proof and the petition for extension had been improperly granted.

As evidenced by its order, the majority, like the panel, has misconstrued the Commonwealth's burden of proof required to demonstrate compliance with Rule 1100(c), and has incorrectly applied it to matters relating to the preparation and transmission of the record, thereby supplanting Pa.R.A.P. 1911-35. Prior to my review of the applicable rules, however, I note that the standard of review of a trial court's grant of an extension of time pursuant to Pa.R.Crim.P. 1100 has been set forth in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). In Lohr, our supreme court stated that "This determination is within the realm of ...

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