dissenting.
Because of the majority’s cavalier disregard of Pa.R. Crim.P. 1100 and our case law interpreting the Rule, I emphatically dissent.
The majority first holds that trial commenced as of November 5, 1975 suppression hearing. As the comment to Pa.R.Crim.P. 1100 states:
“It is not intended that preliminary calendar calls should constitute commencement of trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.”
As Former Chief Justice Eagen, in discussing the comment to Rule 1100, stated:
*503“. . . The principle concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the Court’s time and resources such that the process of determining the defendant’s guilt or innocence flows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt determining process is a ‘first step’ in the trial for purposes of Rule 1100.”
Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (Concurring Opinion).
The majority’s holding that a suppression motion constituted a first step in a trial which then did not see the second step in the guilt determining process for over two years has no foundation in either logic or case law. See Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978) (suppression hearing did not constitute commencement of trial when sixty-two days elapsed before beginning of the actual guilt determining process); Commonwealth v. Bowers, 250 Pa.Super. 77, 378 A.2d 461 (1977) (forty-seven day delay). Furthermore, the majority implicitly holds that from the time of the suppression hearing, the Commonwealth was ready, willing and able to proceed to trial. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), we held the Commonwealth could appeal from a pre-trial order suppressing evidence only if the effect of the order was to terminate prosecution or the order would substantially handicap the Commonwealth because of its inability to present all of its evidence. In order to take its pretrial appeal from the November 13, 1975 order suppressing various evidence, the Commonwealth would have had to make an allegation which would directly contradict the majority’s implicit holding that the Commonwealth was at all times ready to proceed to the actual guilt determining process. I fail to comprehend how the suppression motion could constitute commencement of trial for Rule 1100 purposes.
*504The majority next holds that the Commonwealth was not required to request an extension of time pursuant to Rule 1100(c), which states:
“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 trial 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.”
In so holding, the majority blithely ignores section (d) of the rule, which states:
“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;
“(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;”
Pa.R.Crim.P. 1100(d).
In Commonwealth v. Brocklehurst, 491 Pa. 151, 153, 420 A.2d 385, 387 (1980), Mr. Justice Kauffman, speaking for the majority, stated:
“This Court consistently has held that the Rules of Criminal Procedure must be interpreted as written.” (footnote omitted) (emphasis in original).
A literal reading of Rule 1100(d) makes clear that automatic exclusion for Rule 1100 is warranted only in two situations, neither of which is applicable instantly. When the Commonwealth is unable to commence trial for any reason despite its due diligence, Rule 1100(c) literally requires the Commonwealth to seek an extension of time. *505Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). Yet, the majority classifies the necessity of requesting an 1100(c) extension as “at most, a technical requirement.” This assertion, however, presupposes that every request for a Rule 1100(c) extension where the Commonwealth wishes to exercise its appeal rights will automatically be granted. I do not believe that to be the case.
In the instant case, the Commonwealth obviously took its appeal in good faith and if an extension had been requested, it should have been granted. Situations could arise, however, where the Commonwealth could, in bad faith, attempt to exercise its appeal rights for the sole purpose of keeping the defendant incarcerated, knowing full well that it will be unable to obtain a conviction should the matter proceed to trial. In such cases, it would be incumbent upon the court entertaining the motion to extend time to determine if the appeal is being taken in good faith. Were it otherwise, an appellate court would then be charged with responsibility of making certain factual findings, a function we have always held to be within the domain of the trial court. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975).
The majority further holds that the Commonwealth was not required to request an 1100(c) extension, since the Commonwealth, by taking its appeal, deprived the trial court of jurisdiction. Pa.R.A.P. 1701(a), cited by the majority, states:
“Except as otherwise prescribed by these rules, after an appeal is taken. . ., the lower court. . . may no longer proceed further in the matter.”
The majority thus assumes that the trial court would have lacked the power to act on a petition to extend time.
I believe the majority’s reliance on Rule 1701(a) is misplaced for two reasons. First, the Rules of Appellate Procedure did not go into effect until July 1, 1976, some seven months after the suppression hearing in the instant case. Secondly, the Commonwealth’s appeal cannot work to wholly deprive the trial court of jurisdiction. To the contrary, the trial court is obliged under 1100(c) to enter any and all *506orders' appropriate to maintain and protect a defendant’s rights to a prompt trial. Thus, by entertaining a motion to extend time after an appeal has been taken, the trial court would be doing no more than maintaining the status quo until after the appeal has been decided.
Literal reading of Rule 1100 clearly obligates the Commonwealth to seek an extension of time whenever it cannot, despite all due diligence, try a defendant within the time period mandated by the rule. Commonwealth v. O’Shea, supra. The only time such an extension need not be sought is when time is excludable under section (d). The Commonwealth does not assert that either of the excludable periods is applicable and for good reason, as neither would apply instantly.
Criminal complaints were issued against appellant on April 4 and 5, 1975. He was arrested on April 6, 1975. Trial, however, did not commence until May 2, 1978. As none of that time is excludable under Pa.R.Crim.P. 1100(d) and no order extending time was issued pursuant to Pa.R. Crim.P. 1100(c), I would order appellant discharged because he was not tried within the time period mandated by Rule 1100.
ROBERTS, J., joins in this opinion.