concurring:
I concur in the result reached by the majority but I am unable to join its reasoning. In my view, the record does not show, either that the Commonwealth exercised due diligence in bringing appellant to trial within the period *71prescribed by Pa.R.Crim.P. 1100, or that it,met the requirements for an extension based upon “judicial delay.” 1 I am satisfied, however, that appellant waived his right to be tried within the Rule 1100 period.2 In addition, I think it should be noted that the trial court based its decision on Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982), which I am unable to reconcile with Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). The majority does not acknowledge this conflict, and its opinion may be read by the trial court as approving Perry.
On February 14, 1980, appellant was late for his preliminary hearing. The hearing was then rescheduled for March *7220, 1980. The trial court, relying on Commonwealth v. Perry, supra, found that this thirty-five day period was attributable to appellant’s unavailability and was thus ex-cludable under Rule 1100(d)(1).3
In Commonwealth v. Morgan, supra, two periods of delay were in question. The first delay occurred because the appellant failed to appear for arraignment. The Commonwealth sought to exclude the period between the date he failed to appear and the date the Commonwealth’s bench warrant was withdrawn. The Supreme Court, however, held this period not excludable, stating:
Nor do we accept the argument that the postponement of the arraignment constituted a “delay in the proceedings” as required by section (d) where as here it in no way affected the commencement of trial. While the “delay” may occur “at any stage of the proceedings” it is only a delay cognizable under section (d) where it causes (either directly or indirectly) the commencement of trial to be postponed for some period of time beyond the time it would have been scheduled absent the “delay.”
Id., 484 Pa. at 123, 398 A.2d at 974.
The second delay occurred because the appellant failed to appear for trial, appearing instead in federal court. Trial was rescheduled, and the Commonwealth sought to attribute this delay to appellant’s unavailability under Rule 1100(d). The Supreme Court, however, held that this delay represented judicial delay under Rule 1100(c),4 and that the *73Commonwealth was therefore required to apply for an extension “prior to the expiration of the period for the commencement of trial,” Pa.R.Crim.P. 1100(c), and to show that “trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Id. Moreover, the Court noted:
It cannot be seriously argued in this case that the Commonwealth’s willingness to arrange for the rescheduling of this matter without any further information than the fact that appellant was involved in a federal proceeding on January 29, 1976, exhibited the kind of due diligence that would warrant the exclusion of a period so extensive as the one here involved.
484 Pa. at 127, 398 A.2d at 976.
Here, the period of delay is like the first of the two periods considered in Morgan. Appellant’s lateness on February 14, 1980, did not cause a delay in the commencement of trial, for a trial date had not yet been set.
In nevertheless excluding the period, the trial court relied on Commonwealth v. Perry, supra. In Perry, the Rule 1100 period expired on January 23, 1978. The appellant had been late for trial on October 26, 1977, and trial was then postponed until November 17, 1977. The case was not reached on that date; nor was it reached on a later scheduled trial date. The appellant was convicted on February 10, 1978. The majority excluded the delay from October 26 to November 17 under Rule 1100(d)(1) as attributable to the appellant’s unavailability. Thus, its decision does indeed support the trial court’s decision here. However, I am unable to reconcile Perry with Morgan, for under Morgan, the court in Perry should have regarded the issue as one of judicial delay, rather than one of the appellant’s unavailabil-' ity. See Commonwealth v. Perry, supra 296 Pa.Super. at 362, 442 A.2d at 810 (HOFFMAN, J., dissenting).
. At the hearing on the Commonwealth’s petition to extend the Rule 1100 period, the only evidence presented to show that trial could not be commenced before the expiration of the period was testimony of the assistant district attorney who had been assigned to the courtroom on August 19, 1980, the date appellant’s case was marked "Ready, Not Reached.” The assistant district attorney stated that the court instructed him to select either one or two of the cases (the record is unclear, N.T. 6) to be tried that day, since the court would be unable to reach all of the cases, and that he then selected the oldest case(s). The assistant district attorney then testified that he "asked [the court administrator] if the case was going to be continued, that it be given the earliest possible date." N.T. 7. He stated that the court administrator responded that September 10 was the earliest possible date. Id. This testimony did not show that the Commonwealth could not, in the exercise of due diligence, have brought appellant to trial during the remaining fifteen days before the expiration of the Rule 1100 period. See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978). It also fell far short of the requirement, established in Commonwealth v. Mayfield, supra, that “if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.” See also Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979) Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
. At the hearing on the Commonwealth’s petition to extend the Rule 1100 period, the assistant district attorney who had been present on August 19, when trial was set for September 10, testified that the public defender representing appellant on August 19 "didn’t say anything” in response to the trial being set for a date beyond the Rule 1100 period. Appellant did not contradict this testimony. Moreover, appellant had previously waived his rights under Rule 1100 for the period June 29, 1980, to August 26, 1980. In these circumstances, appellant waived his rights under Rule 1100 until September 10, 1980. Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).
. Rule 1100(d)(1) provides:
(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
Pa.R.Crim.P. 1100(d)(1).
. Rule 1100(c) provides:
(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if *73trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
Pa.R.Crim.P. 1100(c).