dissenting:
The majority holds that it is “unable to find, on the record before us, that the Commonwealth had discharged its duty to exercise due diligence to ascertain appellant’s whereabouts.” (p. 187) The majority therefore directs that the instant case be remanded to the court below for further evidentiary hearings. I believe that the majority opinion reflects a blatant disregard for logic and legal precedent.
A criminal complaint, charging various offenses, was lodged against the appellant on April 1, 1974. Under the mandate of Pa.R.Crim.P. 1100(a)(1),1 the Commonwealth was required to bring the appellant to trial within 270 days of the filing of the complaint. The appellant, however, was not tried until May 27, 1975, or 421 days after the complaint was filed. The appellant now contends that his right to a speedy trial under Rule 1100 was violated. I agree with this contention.
Appellant’s trial was originally scheduled to begin on November 12, 1974. The appellant failed to appear in court on that date and was promptly declared a fugitive by the *194lower court. The record shows that on November 12, 1974, the appellant was in the Delaware County Prison. The record also shows, and the majority admits, that some members of the Delaware County District Attorney’s Office knew that the appellant was then imprisoned. The majority concludes that the appellant could not properly be declared a fugitive, “given the fact that he was in custody. . . . ” (p. 188) Nevertheless, the majority suggests that the appellant might still be considered “unavailable” for trial under Rule 1100. See Pa.R.Crim.P. 1100(d)(1).2
The majority’s reasoning is spoiled by the Official Comment to Rule 1100, which notes, in part, that “the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence . .” Here, the evidence clearly shows that the appellant had not only been apprehended and imprisoned in Delaware County, but that he had also received notice that he was scheduled to be tried on November 12, 1974. The conclusion is inescapable that the prosecutorial forces of Delaware County knew the whereabouts of the appellant and could easily have secured his presence at trial. Since the record is clear that the Commonwealth did not exercise due diligence in securing the appellant’s presence at trial and that the mandatory period had expired when the appellant filed his motion to dismiss, I would reverse the judgment of sentence and discharge the appellant.
I must also note my disagreement with the majority on two other points. First, I believe the majority incorrectly equates the term “Commonwealth” solely with the prosecuting district attorney. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Pennsylvania Supreme Court held that the “ ‘Commonwealth’ in the context of the Rule clearly refers to prosecutorial officers.” (emphasis added) Id. 469 Pa. at 16, 364 A.2d at 698. Thus, we have held that a *195defendant may not be considered unavailable if his whereabouts are known to the police. Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976); Commonwealth v. Martin, 246 Pa.Super. 407, 371 A.2d 903 (1977). If the knowledge of a defendant’s whereabouts by a prosecuting officer is attributable to the Commonwealth, see Commonwealth v. McCafferty, supra; Commonwealth v. Martin, supra, then, a fortiori, the knowledge of the defendant’s whereabouts by certain members of the District Attorney’s Office should be attributable to the Commonwealth. Certainly, the term “Commonwealth” should not be limited to refer only to the prosecuting district attorney.
Further, I do not agree that the appellant may be blamed for the delay in this case because he failed to inform his counsel, the warden, or the prosecuting district attorney that he was in prison. An accused is not required to bring himself to trial. E. g., Commonwealth v. Adams, 237 Pa.Super. 452, 352 A.2d 97 (1975). The prosecutorial forces of Delaware County knew that the appellant was incarcerated in their prison. The majority, nevertheless, suggests that the appellant had culpably concealed himself in “some crevice of the criminal justice system.” (p. 188) There is nothing in the record, however, to indicate that the appellant attempted to conceal his true identity or that the authorities were unaware of his identity. Unlike the majority, I refuse to characterize the appellant as “hiding-out” during his period of incarceration. Although the appellant may not have desired to be tried on the instant charges, his whereabouts were known by prosecutorial officers who could easily have arranged the appellant’s presence at trial.
I would reverse the judgment of sentence and discharge the appellant.
. Pa.R.Crim.P. 1100(a)(1) provides that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”
. Pa.R.Crim.P. 1100(d)(1) provides that: “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.”