dissenting:
Because I find that the Commonwealth failed to act with due diligence in prosecuting this case, I would affirm the trial court order that dismissed the charges pursuant to Rule 1100. Thus, I must respectfully dissent.
The Majority correctly states that this Court’s standard of review is limited to considering only that evidence on the record of the Rule 1100 hearing and the findings of the trial court. Majority slip op. at 295, citing Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). Most importantly, when this Court reviews such a decision, we “must view the facts in the light most favorable to the prevailing party,” and the trial court’s ruling will not be disturbed absent an abuse of discretion. Edwards, supra, at 105, 595 A.2d at 53.
In order to consider the merits of Zaslow’s contentions, we must analyze the pertinent provisions of Rule 1100, which provides that, where the defendant is at liberty on bail, trial shall commence within no later than 365 days from the date on which the complaint is filed. Pa.R.Crim.P. 1100(a)(3). Further, this rule provides for the exclusion of certain periods of time from its calculations; namely:
*301(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or the defendant’s attorney:
(ii) any continuance granted at the request of the defendant or the defendant’s attorney.
Pa.R.Crim.P. 1100(c). Lastly, the rule provides that a defendant may petition the court for dismissal of the charges against him if the Commonwealth has failed to prosecute within the allotted time period. Pa.R.Crim.P. 1100(g). The trial court will then conduct a hearing to determine whether the Commonwealth prosecuted the case with due diligence and whether the circumstances occasioning the postponement were beyond the Commonwealth’s control. Id. Thereafter, the court will determine if dismissal of the charges is proper. Id.
The complaint against Zaslow was filed on March 10, 1993. Thereafter, Zaslow was arrested and released on bail. Thus, according to Rule 1100, Zaslow’s run-date was March 11, 1994. Pa.R.Crim.P. 1100(a)(3). The Majority excludes the entire period that was used to determine the competency of his co-defendant, Arthur Terrence Daly, from its calculations, and, thus, arrives at an amended run-date of October 19, 1994. In making this determination, the Majority simply claims that “the Commonwealth was entitled to participate in the process of evaluating Daly.” Majority at 298 n. 2. The Commonwealth asserts, and I concur, that this time is properly excludable as to the determination of Daly’s Rule 1100 run-date. N.T., dated October 27, 1994, at 149-50. However, the Majority cites no authority, nor has my research disclosed any, in support of its assertion that the Commonwealth may exclude *302this time from the determination of Zaslow’s run-date. In fact, the Commonwealth conceded at the Rule 1100 hearing that the period of time relating to Daly’s competency was not excludable as to Zaslow, but stated that it considered this time “extendible” to Zaslow. Id. at 150. I am unable to agree with this novel concept of “extendible” time, as it is unsupported in either the language of the Rule or the caselaw of this Commonwealth.
In calculating Zaslow’s Rule 1100 run-date, the trial court excluded the period between September 14, 1993 until February 22, 1994 from its calculations, a period of 161 days. Even assuming that this exclusion is correct, the amended run-date for bringing Zaslow to trial according to the trial court’s calculations was August 17, 1994. The pre-trial conference was not scheduled until September 29, 1994, and the docket does not reflect that a trial date was ever set. Further, the record does not reflect that Zaslow expressly waived the applicability of Rule 1100, nor is the procedural delay attributable to him or to his counsel. In fact, Zaslow was prepared to proceed at all hearings and strenuously objected to all of the Commonwealth’s requested continuances. Thus, I conclude that Zaslow was not brought to trial within 365 days, in violation of Rule 1100. The Commonwealth contends that because it acted with due diligence in prosecuting Zaslow, and the delay is fully attributable to questions about Daly’s competency, a dismissal is not warranted. I disagree.
The purpose of Rule 1100 is to ensure that a criminal defendant will be brought to trial within a certain time period or be discharged. Commonwealth v. Johnson, 405 Pa.Super. 363, 375, 592 A.2d 706, 711 (1991). Further, the Commonwealth is required to take affirmative action to ensure that a defendant is brought to trial within the required time period. Commonwealth v. Hawk, 528 Pa. 329, 597 A.2d 1141 (1991); Commonwealth v. Hagans, 482 Pa. 572, 394 A.2d 470 (1978). In reviewing the dismissal of an action pursuant to Rule 1100, our supreme court has stated:
“When a case has possible Rule 1100 problems, prosecutors must do everything reasonable within their power to *303see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). [See also ] Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with diligence.
Commonwealth v. Browne, 526 Pa. 83, 89, 584 A.2d 902, 905 (1990). In addition, the Commonwealth has the burden of establishing to the reviewing court that the accused was brought to trial with due diligence. Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990); Hawk, supra.
In order to determine if the Commonwealth acted with due diligence in the present case, we must ascertain if the trial court should have granted Zaslow’s motions to sever his trial from that of his co-defendants. In considering this issue, I agree with the Majority that the consolidation of cases is preferred in this Commonwealth. Majority op. at 295-296. However, it cannot be disputed that “a defendant’s case should be severed if not doing so would result in substantial injustice.” Commonwealth v. Stocker, 424 Pa.Super. 189, 204, 622 A.2d 333, 341 (1993). Further, “the court must balance the need to minimize the prejudice that may be caused by consolidation, against the general policy of encouraging judicial economy.” Commonwealth v. Presbury, 445 Pa.Super. 362, 366, 665 A.2d 825, 828 (1995).
In the present case, the record reveals that Zaslow requested severance of his trial from that of his co-defendants on seven separate occasions. See, N.T., supra, at 76-80, 92, 102, 113, 118-20, 123, 126-7. In fact, Zaslow renewed his severance motion at every possible opportunity. In response, the Commonwealth vigorously opposed such motions, claiming that consolidation was required because of principles of judicial economy. The Commonwealth repeatedly expressed concern that its witnesses would refuse to testify at more than one hearing. However, the Commonwealth did not provide any evidence to substantiate this claim. The Commonwealth does not offer evidence that it experienced difficulty in locating these witnesses, nor that the witnesses refused to cooper*304ate with Zaslow’s prosecution. Instead, the Commonwealth simply made a bald assertion that its witnesses were unlikely to appear for more than one hearing. See, id., at 85, 103-4, 110, 112-14, 118-19, 123-24, 126-27. In fact, most of the proposed -witnesses had already testified before the grand jury. Id. at 85. In addition, all of the Commonwealth’s -witnesses that testified against Zaslow live in the Philadelphia area. Id. at 147. Thus, I am not persuaded by this argument.
Further, the Commonwealth contends that the hearings were too complex to sever. Prior to the preliminary hearing, the Commonwealth insisted that it would require at least two weeks of court time and include the testimony of 70 to 80 witnesses. However, at the preliminary hearing, all of Zaslow’s co-defendants, including Daly, waived their right to a preliminary hearing. Thus, the Commonwealth was only required to establish a prima facie case against Zaslow. In doing so, the Commonwealth called only 19 -witnesses over a span of 4 days. Accordingly, the Commonwealth’s claim of complexity is belied by the record. Based on this disparity, I conclude that the Commonwealth exaggerated the complexity of this case. .Thus, I cannot sanction a finding that the Commonwealth acted with due diligence.
In evaluating the Commonwealth’s diligence in this matter, we must also acknowledge that Zaslow informed the court that he was experiencing severe difficulties due to the delay in these proceedings. ' Specifically, Zaslow claimed that his medical practice- suffered a drastic loss of patients, that he was forced to sell the building that housed his practice and was unable to earn a living as a medical expert, and was faced with potentially significant civil liabilities. Accordingly, in balancing the competing interests of judicial economy and the prejudice suffered' by the defendant as required by Presbury, supra, I would agree with the trial court that, in the present case, the prejudice suffered by Zaslow outweighs the Commonwealth’s claims of inconvenience.
Moreover, the Commonwealth failed to have Daly, Zaslow’s co-defendant, examined by its own expert until January 1994, ten months after criminal charges were filed against Zaslow *305and Daly. I find this delay inexcusable as it was apparent early in the proceedings that Daly’s competency to stand trial would be a hotly contested issue. The Commonwealth does not offer an explanation for this long delay.
Finally, I am compelled to express my general concern that the Majority does not adequately consider Commonwealth v. Browne, supra, in reaching its conclusion in this case. This Court should not blindly accept the Commonwealth’s failure to promptly bring a defendant to trial. Our supreme court has “become concerned that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100....” Browne, supra, at 89, 584 A.2d at 905. I take this admonition to heart. Accordingly, after a review of this record, I would conclude that severance was not only possible in this case, but it was the only method available to the Commonwealth to ensure that Zaslow would be brought to trial within the aforesaid time. This opposition to severance, in my view, is evidence of the Commonwealth’s lack of due diligence.
The trial court found that, under the totality of the circumstances, the Commonwealth failed to act with due diligence in bringing Zaslow to trial within the specified time period. Because this Court is required to view the facts in the light most favorable to Zaslow as the prevailing party, I would agree with this determination. Thus, I would find that the trial court did not abuse its discretion, and I would affirm the order granting Zaslow’s petition to dismiss pursuant to Rule 1100. Hence, this dissent.