The opinion
CERCONE, President Judge,
dissenting:
I heartily dissent.
Rule 1100(c) provides that applications by the Commonwealth to extend the time for trial may be granted “only if trial cannot be commenced within the prescribed period despite due diligence, by the Commonwealth.” Since Commonwealth v. Mayfield, 469 Pa. 214 , 364 A.2d 1345 (1976), Rule 1100(c) has been interpreted to require a record showing of due diligence. The Supreme Court stated there:
Henceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.
Id., 469 Pa. at 222 , 364 A.2d at 1349-1350 . Cf. Commonwealth v. Berry, 271 Pa.Superior Ct. 466, 414 A.2d 130 (1979); Commonwealth v. Warman, 260 Pa.Superior Ct. 143, 393 A.2d 1046 (1978). Mere assertions of due diligence and allegations of fact do not establish cause for an extension of time under Rule 1100(c). See Commonwealth v. Ehredt, 485 *105 Pa. 191 , 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa.Superior Ct. 535, 390 A.2d 1366 (1978); Commonwealth v. Ray, 240 Pa.Superior Ct. 33, 360 A.2d 925 (1976). Of course, the Commonwealth may obtain the extension it seeks if it presents sufficient evidence at the hearing on Rule 1100 petition. Cf. Commonwealth v. Cimaszewski, 261 Pa.Superior Ct. 39, 395 A.2d 931 (1978). In our review of the hearing court’s ruling we may consider the evidence presented by the Commonwealth and only so much of the defense evidence which goes uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553 , 372 A.2d 826 (1977). Moreover, in Commonwealth v. Jackson, 269 Pa.Superior Ct. 249, 409 A.2d 873 (1979) this Court held that Rule 1100 hearings need not be exhaustive in order to be thorough. As Judge Spaeth wrote there:
It is therefore settled that Rule 1100 requires evidence in support of a petition to extend. This does not mean that Rule 1100 hearings may not be short and to the point. If a Commonwealth petition pleads facts that the answer admits, no further proof should be necessary. Commonwealth v. Ehredt, supra, 485 Pa. at 191 n.8, 401 A.2d 358 n.8 .
The technique of judicial notice may also be useful. Id., 269 Pa.Superior Ct. at 253, 409 A.2d at 875 . (Footnote omitted). Thus, I have no quibble with the majority when it finds no error on the part of the lower court in accepting the notations in the quarter sessions file concerning the unavailability of prosecution witnesses on August 9 and September 4. However, I cannot accept its conclusion that this alone was sufficient to sustain the Commonwealth’s burden of proof of its diligence.
To my mind the most that can be inferred from the fact that the arresting officer was unavailable for trial on September 4 is that the Commonwealth had been diligent up until and including that date. But, there is absolutely no evidence in the record which supports the inference that the Commonwealth was diligent after that date. It is impossi *106 ble to tell from this record when the arresting officer returned from his vacation. (Indeed, given the fact that September 4 was the day after Labor Day, it might not be unreasonable to infer that the arresting officer shortly returned from his vacation.) How the majority can conclude that the mere notation of the officer’s absence on September 4 shows that the Commonwealth was diligent in not bringing appellant to trial before the run-date, October 1, completely escapes me.
Moreover, the Commonwealth completely failed to show that upon the officer’s return (assuming of course that he returned before the run-date, said assumption being necessitated by the Commonwealth’s failure to establish the date of his return) that appellant could not have been brought to trial within the run-date on his case advanced over others without Rule 1100 problems. See Commonwealth v. Freeman, 280 Pa.Superior Ct. 462, 421 A.2d 814 (1980); but see Commonwealth v. Suggs, 289 Pa.Superior Ct. 44, 432 A.2d 1042 (1981). *
Furthermore, Commonwealth v. Mayfield, supra requires not only a record showing of the prosecution’s due diligence, but a certification that the case is scheduled for the earliest possible date consistent with the court’s business. This certification is entirely lacking in this case as well.
Because I believe that the Commonwealth failed to sustain its burden of proving its diligence, and because the court did not certify that the trial was begun at the earliest possible date consistent with its business I would reverse and discharge appellant. Accordingly, I must dissent.
See Commonwealth v. Tate, 299 Pa.Superior Ct. 518, 445 A.2d 1250 (1982) (Opinion per Johnson, J. with Spaeth and Wieand JJ. joining). Here it was held that it was ineffective assistance of counsel to preserve for appeal a Rule 1100 question involving a police officer’s inability to appear on the date of trial but where he returned shortly thereafter, and where the Commonwealth presented no evidence as to why the case could not have been tried upon the officer’s return.