dissenting:
I respectfully dissent.
Appellant, Terry Mott, was convicted of rape on May 17, 1976 following a nonjury trial. New counsel entered his appearance for post-verdict motions and raised inter alia, the issue of trial counsel’s ineffectiveness for failing to petition for dismissal of the charge under Pa.R.Crim.P. 1100 (Rule 1100). Post-verdict motions were denied, and, on October 13, 1976, Mott was sentenced to a prison term of two to ten years. On appeal to this court in February 1978, we vacated the judgment of sentence and remanded for an evidentiary hearing on the question of trial counsel’s effective assistance. After a hearing on April 27, 1978, trial counsel’s assistance was found not to be ineffective because Rule 1100 had not been violated and a petition to dismiss for a violation of the Rule would have been unsuccessful. On October 23,1978, judgment of sentence was reimposed. This appeal followed.
Section (a)(2) of Rule 1100 requires that trial in a criminal case commence no later than one hundred eighty days after the filing of the complaint. To avoid dismissal, any delay *337beyond the mandatory period must either be excluded from the computation of the period pursuant to section (d) of Rule 1100, or justified by an order granting an extension pursuant to section (c) of Rule 1100. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Calculation of the running of the one-hundred-eighty-day period is made in accordance with 1 Pa.C.S.A. § 1908 which mandates exclusion of the first day and inclusion of the last. See Commonwealth v. Wade, supra, 475 Pa. at 402 n. 2, 380 A.2d at 783 n. 2.
The criminal complaint against Mott was filed November 13, 1975 (excluded), and trial commenced on May 17, 1976 (included). Thus, one hundred eighty-six days lapsed between the filing of the complaint and commencement of trial. The Commonwealth did not seek an extension under section (c) of Rule 1100. Hence, it was obliged to establish, by a preponderance of the evidence, that six days should be excluded pursuant to section (d) of Rule 1100. See Commonwealth v. Wade, supra; Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). The court, on remand, found that the Commonwealth had met this burden of proof. I disagree.
The hearing court determined that three days were ex-cludable under section (d)(1) of Rule 1100 because the police had been unable to apprehend Mott, after exercising due diligence, between the filing of the complaint on November 13, 1975 and his surrender on November 16, 1975, thus rendering him unavailable during that period. The court also excluded one day under section (d)(2) due to the granting of a thirty-one-day continuance to the defense from February 6, 1976 to March 8, 1976. It was then determined that, since these four days extended the period of the Rule to May 15, 1976, a Saturday, and trial commenced on May 17, 1976, the following Monday, Rule 1100 was not violated due to the decision in Commonwealth v. Jones, 473 Pa. 211, 373 A.2d 1338 (1977) (where the period of Rule 1100 ends on a weekend and the trial commences the following Monday, the Rule is not violated).
*338However, even accepting the lower court’s findings that one day is excludable due to a continuance of thirty one days and that the police were unable to apprehend Mott despite their due diligence between the filing of the complaint on November 13, 1975 and his surrender on November 16, 1975, I cannot agree appellant was brought to trial within the one hundred eighty days required by the Rule. The hearing court excluded three days after finding Mott unavailable between November 13, 1975 and his surrender on November 16, 1976. Yet, Mott was not unavailable on November 16, the day of his surrender and cannot be considered unavailable for the purposes of section (d) of Rule 1100 on November 13 since this was the date on which the complaint was filed, and computation of the one-hundred-eighty-day period of Rule 1100 did not begin until November 14, the following day. 1 Pa.C.S.A. § 1908. Thus, his availability on the 13th is irrelevant because the 13th is not within the calculated period of the Rule. This leaves only two days, November 14 and November 15, excludable due to Mott’s unavailability. Combining these days with the one day excludable due to a continuance of thirty one days only extends the period to May 14, 1976, a Friday, and trial commenced on the 17th. Therefore, Mott was not brought to trial within the period required by Rule 1100.
Where, as in the instant case, a violation of an appellant's speedy trial right was apparent on the record and counsel failed to petition for dismissal, a majority of this court has determined that an evidentiary remand is unnecessary since counsel could have no reasonable basis for his inaction and was, therefore, ineffective. Commonwealth v. Weber, 256 Pa.Super. 249, 389 A.2d 1107 (1978); Commonwealth v. Byrd, 250 Pa.Super. 250, 278 A.2d 921 (1977). Cf. Commonwealth v. Hairston, 256 Pa.Super. 153, 389 A.2d 647 (1978). In such cases, the judgment of sentence has been vacated and appellant ordered discharged. See Commonwealth v. Lane, 265 Pa.Super. 35, 401 A.2d 787 (1979); Commonwealth v. McNeal, 261 Pa.Super. 332, 396 A.2d 424 (1978); Commonwealth v. Weber, supra. Accordingly, I would do so now.