dissenting:
The majority first concludes that the trial was timely, and next, that the nighttime search was proper. I disagree with both conclusions.
1
On January 9,1975, a criminal complaint was filed against appellant charging him with the crime of receiving stolen property.1 Thus appellant should have been brought to trial by July 8.2 Appellant’s case was scheduled for trial on July 1 but was not reached because the court room to which it had been assigned was being used. The case was rescheduled for July 9. On July 7,179 days after the complaint was filed, the Commonwealth filed a petition under Rule 1100(c) for an extension of time. On July 8 appellant filed a petition under Rule 1100(f) to dismiss the charge with prejudice. Both petitions were argued on July 9. The court granted the Commonwealth’s petition and denied appellant’s.
Rule 1100(c) provides:
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 applica*95tion 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.
The Commonwealth has the burden of showing that it has met these requirements. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).
Here the Commonwealth has not carried its burden. The July 9 “hearing” consisted only of argument by counsel. The district attorney stated that “[sjeveral Commonwealth witnesses indicated that although they were available on July 1, 1975, they would not be available on July 2 or 3 and that in fact the earliest day when the Commonwealth’s witnesses would all again be available would be July 9, 1975.” N.T. Extension Hearing at 2. By accepting this statement as sufficient, the majority stands Rule 1100 on its head: the Rule guarantees a speedy trial for defendants, not a convenient trial for witnesses. Certainly the availability of witnesses is a relevant factor in a decision whether an extension should be granted. Cf. Commonwealth v. Jenkins, 248 Pa.Super. 300, 375 A.2d 107 (1977); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977). However, a bald statement that for unspecified reasons an unspecified number of witnesses will not be “available” for four court dates (July 2, 3, 7, and 8; July 4-6 was a holiday weekend) is not sufficient to show due diligence on the part of the Commonwealth.3
The order extending the period for commencement of appellant’s trial was therefore improvidently granted, and appellant should be discharged.
*962
For the sake of discussion only, and without deciding the point, I am willing to accept the majority’s premise that in requiring “reasonable cause for [a] nighttime search”, Pa.R. Crim.P. 2003(c) really means something less than “reasonable cause,” which the majority, borrowing from the California Penal Code, characterizes as “good cause,” or as “some reason why the search cannot wait until morning.” Even so, the California cases cited by the majority show that here there was no showing of “good cause,” or of any reason why the search should not wait. Specifically: The affidavit does not say when Wilbur was arrested; it does not say how much after the arrest the information was received that the property was going to be moved; and finally, it does not say from whom this information was received. None of the California cases cited by the majority upheld a nighttime search on so meagre an affidavit. If the majority is right that such an affidavit shows “good cause,” all the police need to say before being able to conduct a nighttime search is that the goods were stolen. It is especially disturbing that the majority should so hold here, when the most recent of the burglaries occurred thirteen days before the search. For all the issuing authority knew, the stolen goods might have been disposed of some rather considerable time ago. Thus there was no reason at all, much less a good reason, why the search should not wait until morning.
While I have no doubt that the nighttime search was improper, I nevertheless agree that the motion to suppress should have been denied, for I do not think this court has the power to order evidence suppressed, if the evidence was seized pursuant to a search warrant issued on probable cause. The reasons for this conclusion are stated in Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977). There the lower court had ordered the evidence suppressed because the police officer who served and executed the search warrant failed to verify the inventory of items seized. Reversing, a majority of this court held that although the officer’s failure was in violation of the Rules of Criminal *97Procedure, it was not such a failure as enabled either the lower court or this court to order the evidence suppressed. An order to suppress may be entered in the defendant’s constitutional rights have been violated. However, the failure to verify the inventory was not such a violation. Neither is the failure to show cause for a nighttime search — as distinguished from showing cause for the search itself. An order to suppress may also be entered if permitted by a rule of court. However, there was no rule permitting suppression as a sanction for the failure to verify the inventory. Neither is there a rule permitting suppression for the failure to show cause for a nighttime search; as in Jones, we must leave it to the Supreme Court whether to promulgate such a rule.
Accordingly, while I agree that the evidence should not have been suppressed, I should nevertheless order appellant discharged because he was not tried in time.
HOFFMAN, J., joins in Part 1 of this opinion.. The Crime's Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 3925.
. The rule operated in this case to require trial within 180 days of the filing of the complaint, Rule 1100(a)(2), unless that period was properly extended in response to a petition filed by the Commonwealth under Rule 1100(c).
. It should also be noted that the Commonwealth did not contend that July 9 was the earliest available trial date after July 1 — a contention that, if proved, might amount to a showing of due diligence. Defense counsel said that courtrooms had been available during the eight-day delay.