COM. v. EHREDT

OPINION OF THE COURT

EAGEN, Chief Justice.

Appellant, Ted Steven Ehredt, was convicted by a jury of receiving stolen property. After a denial of his motions for a new trial and in arrest of judgment, judgment of sentence of six to twenty-two months imprisonment was imposed. An appeal was taken to the Superior Court which, by an equally divided court, affirmed the judgment of sentence.1 We granted a petition for allowance of appeal.

Ehredt complains, inter alia, that the trial court erred in granting a Commonwealth application for extension of time in which to begin his trial filed pursuant to Pa.R.Crim.P. 1100 [hereinafter: Rule 1100].

Rule 1100(c), in pertinent part, provides:

Specifically, Ehredt asserts the Commonwealth did not exercise "due diligence" in commencing his trial within the term mandated by the Rule.

On January 9, 1975, a criminal complaint was filed against Ehredt charging him with receiving stolen property. Therefore, pursuant to Rule 1100(a)(2),2 trial should have been commenced on or before July 8, 1975.3

Ehredt's trial was originally scheduled for July 1, but was continued to a later date because the courtroom to which it was assigned was in use. The case was rescheduled for trial on July 9. On July 7, the one hundred and seventy-ninth day, the Commonwealth filed its application for extension pursuant to Rule 1100(c). On July 8, Ehredt filed an application to dismiss the complaint with prejudice pursuant to Rule 1100(f).4 Both motions were argued on July 9, the one hundred and eighty-first day after the filing of the complaint, after which the court granted the Commonwealth's application for an extension. Trial commenced that same day — the one hundred eighty-first day after the filing of the complaint.

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court's ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.

Instantly, while the Commonwealth may initially have been diligent in its attempt to commence Ehredt's trial on July 1, 1975, it has not met its burden of establishing "due diligence" in attempting to commence the trial subsequent to that date and prior to the expiration of the term mandated by the Rule.

At the extension "hearing,"5 the assistant district attorney stated "good cause" for the grant of an extension existed because "[s]everal Commonwealth witnesses indicated that although they were available on July 1, 1975, they would not be available on July 2 or 3 and that in fact the earliest day when the Commonwealth's witnesses would all again be available would be July 9, 1975."6

Although the preponderance standard is the least burdensome standard of proof known to the law, Commonwealth v. Mitchell, supra, a bare statement by the Commonwealth's attorney that several witnesses are "unavailable," without more, does not establish "due diligence" within that standard.7 While the unavailability of a witness may be a relevant factor in determining whether an extension should be granted, see Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977), "[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c)."8 Commonwealth v. Antonuccio, 257 Pa.Super. 535, 537, 390 A.2d 1366, 1367 (1978).

The order of the Superior Court and the judgment of the trial court are reversed, and Ehredt is ordered discharged.9

LARSEN, J., dissents.