The opinion
WATKINS, Judge,
dissenting:
I dissent.
The majority holds that the court erred in granting the Commonwealth an extension of time in which to bring the defendant to trial finding that the Commonwealth did not demonstrate by a preponderance of the evidence that it exercised due diligence.
The application for the extension of time, filed by the Commonwealth on July 14, 1975, was timely since the 180 day period mandated by Pa. R. Crim. Pro. 1100, did not expire until July 27, 1975. Commonwealth v. Brown, 251 Pa.Super. 179 , 380 A.2d 436 (1977). I would hold that the Commonwealth had fulfilled its burden of due diligence when it explained that two key Commonwealth witnesses were “unavailable” for the trial due to their presence at the seashore during the summer when they were outside the subpoena power of the court. Therefore, I would hold that the court below acted properly when it granted the Commonwealth the extension of time it had requested.