dissenting opinion.
I respectfully dissent because I believe that the majority has misinterpreted the Rules of Criminal Procedure. Initially, I disagree with the majority’s assertion that “once the trial court set nominal bail, the authorities were required to immediately release Andrews, with or without the execution of a bond.” Majority opinion at 757 (emphasis added). This assertion is in direct contradiction to the official comment to Rule 1100, which states, “[w]hen admitted to nominal bail pursuant to this rule, the defendant must execute a bail bond.” Accordingly, Andrews was not entitled to be released until he executed a bond.
Further, I disagree with the majority’s assertion that “under Rule 1100(e), a parolee who fails to execute a bond is, nevertheless, entitled to credit for time served solely pursuant to a detainer.” Majority Opinion at 758, n. 3. In Gaito, our Pennsylvania Supreme Court held that “time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator’s original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him.” Gaito at 403, 412 A.2d 568 (citing, Rodriques v. Pennsylvania Board of Probation and Parole, 44 Pa.Cmwlth. 68, 403 A.2d 184, 185-86 (1979)) (emphasis added).
*759In the present controversy there is no evidence of record to determine whether Andrews executed a bail bond. In Pierce v. Pennsylvania Board of Probation and Parole, 92 Pa.Cmwlth. 457, 500 A.2d 181 (1985), this Court was confronted with a similar situation where a parolee sought credit towards his recommitment time for a period during which he claimed he had satisfied bail requirements on new charges and remained in custody solely because of parole violations. We determined that there was no evidence of record to demonstrate that parolee had posted bail, stating:
The computation of recommitment time, including the proper crediting of time spent in custody solely on a Board warrant, is a determination made by the Board just as is the determination that a petitioner did in fact violate his parole. Accordingly, the Board must bear the burden of justifying its computation of recommitment time by presenting substantial evidence that bail was not posted.
The Board meets this burden by presenting records pursuant to 37 Pa.Code § 71.5(d). See Davis v. Pennsylvania Board of Probation and Parole, 85 Pa.Commonwealth Ct. 278, 481 A.2d 714 (1984). A Petitioner can then rebut this evidence by demonstrating that the Board’s evidence inaccurately reflects that he did not post bail. Because in this case we are unable to determine whether Petitioner was properly credited with time spent in custody until the factual question of whether he qualified for bail on the new charges is determined we must remand this case to the Board for such a determination and recomputation if necessary. Gaito.
Id. 500 A2d at 183.
Here, as in Pierce, because the record is silent on whether Andrews was properly credited with time spent in custody I would remand this case to the Board for such determination.
KELLEY and LEADBETTER, JJ., join in this dissent.