concurring:
I agree with Judge HOFFMAN’s conclusions that an affirmance by an evenly divided court is not a final ruling on the merits of an issue, and that the evidence offered by the Commonwealth in support of its argument that appellant was unavailable during the period between the filing of the complaint and his arrest was insufficient to warrant our holding that period excludable under Pa.R.Crim.P., Rule 1100(d)(1). Given these conclusions, however, the question remains whether we should remand for further hearing. See Commonwealth v. Hinton, 269 Pa.Super. 43, 57, 409 A.2d 54, 61 (1979) (SPAETH, J., dissenting). I offer this concurring opinion by way of explaining by conclusion that remand would be inappropriate.
It is settled that in a Post Conviction Hearing Act proceeding, the petitioner bears the burden of proving his claim that he has been denied effective assistance of counsel. 19 P.S. § 1180-3 (Supp.1979-80); Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978); Commonwealth v. Barnes, 248 Pa.Super. 579, 375 A.2d 392 (1977). In this case appellant presented evidence that three days after the 180 day period had expired, his counsel, instead of moving the court to dismiss the charges under Rule 1100(f), moved for a continuance. This evidence was sufficient to satisfy appellant’s burden of proof, for counsel’s failure to raise a meritorious Rule 1100 claim can have no reasonable basis. See Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977).
The Commonwealth responded to appellant’s evidence by arguing that the period of time that elapsed between the filing of the complaint and the arrest should have been excluded because appellant was unavailable within the meaning of Rule 1100(d)(1). It is the Commonwealth’s and not the defendant’s burden to prove that a period of time is excludable under Rule 1100(d)(1). See Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192 (1978). The fact that *608appellant bore the burden of proof generally did not mean that the Commonwealth did not bear the burden of proving an exclusion under Rule 1100(d)(1). See Commonwealth v. McNeal, 261 Pa.Super. 332, 396 A.2d 424 (1978) (SPAETH, J., with one judge joining and three judges concurring in the result). And see Commonwealth v. Jones, 455 Pa. 269, 314 A.2d 308 (1974) (in post-conviction hearing, burden of proving voluntariness of confession remains on Commonwealth).
In my dissenting opinion in Commonwealth v. Hinton, supra, I maintained that the record was such that we could not decide the issue of the Commonwealth’s due diligence, and that the case should therefore be remanded. In Hinton this court was confronted with a difficult question concerning the procedures that the police should reasonably be expected to use in checking and re-checking prisons for missing defendants. I believe that to decide that question, additional evidence concerning both normal police procedures and the costs of requiring more extensive procedures was necessary. This case, however, merely involves the question of the adequacy of a police street investigation as to the whereabouts of appellant. No additional evidence concerning police procedures is necessary and when measured against past cases involving the adequacy of a police investigation, the evidence of due diligence here was clearly insufficient. See Commonwealth v. Simpson, 269 Pa.Super. 124, 409 A.2d 95 (1979); Commonwealth v. Williamson, 269 Pa.Super. 136, 409 A.2d 101 (1979); Commonwealth v. Collins, 266 Pa.Super. 340, 404 A.2d 1320 (1979). Indeed, to hold otherwise would be equivalent to holding that the Rule 1100 period commences to run on the day that the police get around to arresting the defendant and not, as the rule requires, on the day that the complaint is filed.