Commonwealth v. WrotenCommonwealth v. Wroten
- Reporters:
- , ,
- Before:
- Cavanaugh
In this case, the appellee, Melvin C. Wroton, was charged with criminal conspiracy, recklessly endangering another person, simple and aggravated assault, theft and robbery. The charges arose out of an incident allegedly involving the appellee, in which a passenger on a bus at four o’clock in the afternoon was attacked by a group of some five youths and robbed of jewelry. Appellee was arrested on June 23, 1980, and several postponements on the date of trial resulted in the run date being extended under Pa.Crim.P. 1100 to June 29, 1981. All parties agree that if trial had been commenced on or before June 29, 1981, that it would have been timely under
On July 2, 1981 a hearing was held on the petition to extend the run date under
The sole question before us is whether Judge Bongiovanni erred in refusing to grant the Commonwealth’s petition for extension of time in which to commence trial. 3 The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirement of Rule 1100(c), i.e., that despite the exercise of due diligence it was unable to bring the appellant to trial within the prescribed period. Commonwealth v. Akridge, 275 Pa.Super. 513, 419 A.2d 18 (1980). However, the preponderance of the evidence standard is the least burdensome standard of proof known to the law. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which is uncontradicted. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981).
Under the applicable law the court below erred in denying appellant’s motion to extend the time for commencing trial. Within the run date the Commonwealth was ready to commence trial and was prevented from doing so by an administrative error which resulted in the bring down order being sent to Graterford rather than to Camp Hill. The prosecuting attorney requested the trial judge to order the appellant brought down from Camp Hill forthwith but the Judge refused to do so. The next available trial date
As long as the Commonwealth acted reasonably, in light of the facts and circumstances as they appeared at the time, the Commonwealth acted with “due diligence,” even if it appears in hindsight that there were other, possibly more desirable or efficacious methods that might have been tried. Commonwealth v. Hinton, 269 Pa.Super. 43, 48-52, 409 A.2d 54, 57-58 (1979) (Petition for Allowance of Appeal Denied December 10, 1979).
The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. “The ‘due diligence’ required. . . [in connection with
Orders reversed and case remanded for trial in the court below on the earliest available trial date.
Notes
. At the hearing on the petition for extension under Rule 1100, Mr. Present, the assistant district attorney, testified as follows in response to the questions of defense counsel, Mr. Irwin:
MR. IRWIN: Mr. Present, is it your testimony that you requested of the court that even though the Defendant could not be brought down on the 22nd that he order the sheriff to bring him down on the 23rd, or the 24th?
MR. PRESENT: That question requires some explanation.
THE COURT: Answer and then explain.
MR. PRESENT: I made a request for a forthwith bring-down. Whether the judge did it that day or the next day, or whenever, I wanted it as soon as possible.
After that request was denied I asked for the earliest possible date.
THE COURT: You asked for the earliest possible date for a court listing?
MR. PRESENT: For a court listing as well. If they could have given me the Defendant on an earlier date I would have taken it.
. Sgt. Keaveniy of the Philadelphia sheriffs office testified that a representative of the sheriffs office goes to Camp Hill about once a week or once every ten days to bring down prisoners for trial in Philadelphia. However, on rare occasions a judge will direct that a prisoner be brought down immediately for trial, and such order is complied with.
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(2) 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.
(c)(1) 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.
. Appellee relies on the case of
Commonwealth v. Bass,
260 Pa.Super. 62, 393 A.2d 1012 (1978) to establish that the Commonwealth did not exercise due diligence. In the Bass case the defendant was incarcerated in New Jersey. The Commonwealth did not ask for the defendant’s return until February 10, 1976 even though it was apparent that the run date for all bills was January 29, 1976 unless an extension was granted under 1100(c). In its petition for an extension, filed after the expiration of the run date, the Commonwealth merely set forth the bare assertion that despite due diligence it was unable to try the case within the Rule 1100 run date, and failed to add anything to its assertion at the hearing on the petition. Appellee also relies on
Commonwealth v. Davis,
261 Pa.Super. 204, 395 A.2d 1388 (1978) in which the appellant was incarcerated in New York
and the Commonwealth wanted to exclude the New York incarceration period from the time limits set forth in
. Given the court’s refusal to issue a bring down order so that appellant could be tried by the run date, and the court crier’s statement that the earliest available trial date was July 2, 1981, the Commonwealth acted with due diligence notwithstanding lack of further efforts to have the trial by June 29, 1981.