Commonwealth v. Postell

BROSKY, Judge:

Appellant, Alfonso Posted, was convicted by a judge sitting without a jury of robbery, aggravated assault and conspiracy. Following the denial of post-trial motions, he was sentenced to a term of imprisonment of two to five years.¹ This appeal followed.

Appellant contends that the lower court erred in granting the Commonwealth’s petition, filed pursuant to Pa.R.Crim.P. 1100, to extend the time for commencement of trial. We agree and, for the reasons set forth herein, reverse the judgment of sentence and order appellant discharged.

Appellant was arrested by complaint filed on August 30, 1977. His trial, therefore, should have commenced on or before February 26, 1978. However, on February 23, 1978, the Commonwealth timely petitioned the court for an order extending the time for commencement of trial.² A hearing on that request was scheduled for March 16, 1978 to determine whether the Commonwealth had exercised due diligence in its efforts to commence trial within the prescribed 180-day period.

Following “hearing”³ the court issued a finding of due diligence and extended the final trial date to April 3, 1978.⁴ The trial court’s finding was based upon two notations appearing in the court records.⁵ They indicated that on December 20, 1977 the case was “Ready-Not Reached”, and thus continued to January 24, 1978, on which date it was further continued to February 15, 1978 because the complainant arrived after the court had adjourned.

Contrary to appellant’s contention that the lower court erred in relying upon such court records, this court has impliedly permitted such use. Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). Nevertheless, a review of the total record fails to reveal a sufficient display of due diligence by the Commonwealth.

In addition to the above notations recited by the trial court, the court records also disclose that the case was twice continued-on February 15, 1978 and February 22,1978-sole-ly as a result of the Commonwealth’s failure to notify necessary witnesses.⁶ It was, in fact, the latter postponement which gave rise to the petition for extension at issue.

No explanation was offered by the Commonwealth for such failure. Nor was evidence presented to show why, despite the unavailability of its witness on February 15 and February 22, 1978, the case could still not be commenced on or before February 26, 1978.

Since it is the Commonwealth which has the burden of establishing due diligence and, on the record before us, it has not done so, we are compelled to conclude that the lower court erred in granting the Commonwealth’s petition for extension.

Judgment of sentence reversed, and appellant discharged.

WICKERSHAM, J., files a dissenting opinion.

1 . The term of imprisonment was imposed for the conspiracy conviction. Appellant also received concurrent seven-year probationary periods on each of the other charges.

2 . Rule 1100(c) provides: “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.” (Emphasis added)

3 . The transcript reveals only the most cursory of “hearings”. The lower court referred to select portions of the record; however, no testimony was presented despite the filing of an answer to the petition specifically denying the exercise of due diligence by the Commonwealth.

4 . A subsequent petition for extension was filed by the Commonwealth and granted on April 21, 1978 further extending the final trial date to May 30, 1978; however, the propriety of that extension is not before us.

5 . Form no. 30-92 (Rev. 11/75), which reflects the action taken at each case’s various listings for trial.

6 . Those same records indicate the defense ready to proceed on each occasion.