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.
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),
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.
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.
The order of the Superior Court and the judgment of the trial court are reversed, and Ehredt is ordered discharged.
LARSEN, J., dissents.
The Commonwealth has never made an argument in connection with the unavailability of courtrooms, the court's schedule, or the like for the period after July 1, and no facts of record indicate the circumstances attendant to these considerations. The court, in denying the application, took judicial notice that the trial could not have been conducted on July 1 due to the "schedule of the court," but neither took notice nor made findings as to the period after July 1 in connection with the court's schedule. The court did not do so even though defense counsel asserted the court's schedule would have permitted trial between July 2 and 8.