This Court has repeatedly held that where delay in the commencement of trial is caused by the unavailability of a witness rather than by a lack of due diligence on the part of the Commonwealth, an extension under Rule 1100(c) is properly granted: Commonwealthv. Thompson, 292 Pa. Super. 108, 111-112, 436 A.2d 1028, 1030 (1981); Commonwealth v. Long, 288 Pa. Super. 414, 432 A.2d 228 (1981); Commonwealth v. Schuster, 288 Pa. Super. 310, 431 A.2d 1063 (1981); Commonwealth v. Sharp, supra 287 Pa.Super. at 318, 430 A.2d at 304; Commonwealth v. Coleman, 280 Pa. Super. 162, 164, 421 A.2d 455, 456 (1980); Commonwealth v. Brant, 272 Pa. Super. 135, 141, 414 A.2d 707, 710 (1979); Commonwealth v. Sinor, supra 264 Pa.Super. at 183 n. 5, 399 A.2d at 727 n. 5; Commonwealth v.Brown, 252 Pa. Super. 365, 369, 381 A.2d 961, 963 (1977). Moreover, the initial delay in the instant case was caused by a defense requested continuance.
Rather, they speak "to the time period within which pretrial motions must be filed . . . but [they do] not expressly or by necessary implication preclude trying a case within that period." Commonwealth v. Coleman, 280 Pa. Super. 162, 165, 421 A.2d 455, 457 (1980) (footnote omitted), petition for allowance of appeal denied, December 31, 1980. In Coleman, the court observed that "trial of a case within thirty (30) days of arraignment might be prevented if the defendant were to object to such scheduling on the ground that he required part or all of the remainder of the filing period to present motions.
See Commonwealth v.Gilberthorp, 283 Pa. Super. 403, 424 A.2d 527 (1981) (Commonwealth not entitled to extension where it gave no reason for failing to bring defendant to trial during the five month period between preliminary hearing and run date); Commonwealthv. Coleman, 280 Pa. Super. 162, 421 A.2d 455 (1980) (Commonwealth not entitled to extension where it could have listed case for trial during last six days of Rule 1100 period); Commonwealth v. Weber, 256 Pa. Super. 483, 390 A.2d 206 (1978) (Commonwealth not entitled to extension where it did not show, inter alia, why the case was not listed for trial during final two weeks of Rule 1100 period). Accordingly, I would reverse the judgment of sentence and order appellant discharged.