*1 THOMPSON, Appellant. David Charles Superior Court 23, 1979. March 13, 1981. Chester, Merrick, appellant. for R. West
John Phoe- Freeman, Attorney, District Assistant James Robert Commonwealth, nixville, appellee. CERCONE,
Before President Judge, WATKINS HOFFMAN, JJ.
HOFFMAN, Judge: contends, alia, inter that the lower court erred Appellant *2 in the for an extension of granting petition Commonwealth’s 1100(c). time to commence trial under We Pa.R.Crim.P. and, reverse the agree accordingly, judgment and order appellant discharged.
Because the criminal was complaint against appellant filed on have appellant’s trial should January commenced on or to Pa.R. according before July 1100(a)(2). Crim.P. trial was sched- Appellant’s ultimately however, uled for the day, 1975. On that case continued at the cru- request Commonwealth’s because two cial not present. Commonwealth witnesses were On 1975,the time petitioned Commonwealth an extension of pursuant witnesses, to rule the two 1100(c), alleging students at a were “unavailable” because nearby university, summer, they were “at the shore” for the vacationing thus could not be served with At the subpoenas, hearing 5,1975, conducted on his motion August appellant presented 1100(f). court, to dismiss to rule The lower how- pursuant ever, granted the Commonwealth’s for an extension petition the failure present Commonwealth’s evidence any whatsoever and the absence of a as to the stipulation perti- nent facts. September Trial was commenced on and resulted in a mistrial because of a hung Subse- jury. of quently, appellant guilty was found stolen receiving prop- erty and criminal the of conspiracy. Following post- denial motions, sentence, verdict of imposition brought this appeal. Ehredt,
In
485 Pa.
At the “hearing,” the assistant district stated attorney “good cause” for the grant of an extension existed be- cause “[sjeveral Commonwealth witnesses indicated that ... not be available....
Although
standard is the least bur-
*3
densome standard of proof
law,
known to the
Common-
wealth v. Mitchell, supra, a bare statement
the Com-
by
monwealth’s attorney that several witnesses are “unavail-
able,”
more,
without
does not establish “due diligence”
within that standard. While the
of a wit-
unavailability
ness
be
may
a relevant
factor
determining whether an
extension
should be granted,
see Commonwealth v.
Brown, 252
365,
Pa.Super.
Id.
418 A.2d Miller, 396-97 270 Pa.Super. 182-184, 411 A.2d Thus, 240-41 (1979). because the Commonwealth failed to present more than its own that, bare allegations its due diligence, it was unable to commence trial within the rule 1100 we period, reverse the judgment of sentence and order dis- appellant charged. reversed and ordered
Judgment discharged.
WATKINS, J., dissenting opinion. files a WATKINS, Judge, dissenting: I dissent. in granting that the court erred
The holds majority bring of time in which an extension not did trial that the Commonwealth finding defendant to it of the evidence that demonstrate aby diligence. exercised due time, filed the extension of
The application since the 180 timely Commonwealth on Pro. did not mandated Pa. R. Crim. day period Brown, until 1975. Commonwealth expire I hold that the (1977). Pa.Super. its burden of due Commonwealth had fulfilled witnesses it two explained when trial due to their at the presence were “unavailable” for the when were outside the seashore the summer during Therefore, I would court. hold subpoena power of the it granted the court acted when Com properly below of time it had requested. monwealth the extension *4 JOHNSON, Appellant. Calvin Superior Nov. 1980. 1981.