The opinion
HESTER, Judge,
dissenting: 1
In Commonwealth v. Donaldson, 334 Pa.Super. 473 , 483 A.2d 549 (1984), this Court ruled that the Commonwealth must prove that it exercised due diligence in bringing the defendant to trial and that trial, whether scheduled originally or upon extension, was scheduled on the earliest possible *402 date. Donaldson also held that where due diligence is not proven, trial may be extended beyond the original run-date providing the defendant waives his speedy trial rights and agrees to the extension. Finally, Donaldson rules that where there is no record of a lower court proceeding, a reviewing court will not remand for an evidentiary hearing on whether the Commonwealth carried its burden of proving due diligence, the earliest possible date or the defendant’s waiver of speedy trial. It is the Commonwealth’s burden to construct a recorded hearing; there will be no remand for a second hearing to provide the Commonwealth with another opportunity.
The majority errs in applying Donaldson principles to the February 5, 1981 hearing. That hearing was not recorded and, in conjunction with the Commonwealth’s failure to file a petition to extend prior to that hearing, the majority concludes that the lower court on March 18, 1981 erred in finding that the February 5th court did extend the run-date.
The proper subject for review was not whether the February 5th court granted an extension, but whether the Commonwealth proved the allegations set forth in its petition for an extension on March 18, 1984. Its petition was timely filed and properly before the Court.
The transcript from the March 18th hearing includes testimony by the prosecutor that the Commonwealth was unable to secure the presence of the complaining witness due to illness. Secondly, he testified that the earliest possible date had been secured. It is unclear whether the lower court relied on this testimony or on its belief that the February 5th court granted an extension. Nevertheless, there was evidence that the Commonwealth carried its burden. The evidence is sufficient to preclude a reviewing court from holding that there was an abuse of discretion.
In view of the foregoing, in addition to the fact that the evidence was sufficient to sustain the verdicts, I would affirm.
. This dissenting opinion was delayed by the filing of this Court’s en banc opinion in Commonwealth v. Donaldson, 334 Pa.Super. 473 , 483 A.2d 549 (1984).