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COMMONWEALTH PENNSYLVANIA v. EUGENE MYRICK (07/06/76)

decided: July 6, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE MYRICK, APPELLANT



COUNSEL

Stephen P. Gallagher, Philadelphia, for appellant.

Marianne E. Cox, Asst. Dist. Atty., Steven Goldblatt, Asst. Dist. Atty., Chief, Appeals Division, Abraham J. Gafni, Deputy Dist. Atty. for Law, F. Emmett Fitzpatrick, Dist. Atty., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 468 Pa. Page 158]

OPINION OF THE COURT

Appellant Eugene Myrick was found guilty, following a non-jury trial, of murder in the second degree, aggravated assault and possession of a firearm without a license. On this appeal,*fn1 he alleges (1) that his waiver of rights under Pa.R.Crim.P. 1100 was invalid, (2) that there was insufficient evidence to sustain the murder conviction and (3) that the Commonwealth was improperly

[ 468 Pa. Page 159]

    permitted to impeach one of its witnesses. Finding no merit to any of these claims, we affirm.

Appellant was arrested on November 10, 1973. By the terms of rule 1100,*fn2 the Commonwealth was obligated to try him within 270 days of his arrest, in this case August 7, 1974. On August 1, 1974, the Commonwealth asked appellant, through his attorney, to agree to a thirty day extension of time for trial to permit the homicide detective who had investigated the case to take his scheduled vacation.*fn3 Although the last day for trial under rule 1100 was August 7, 1974, appellant was told at the hearing on the Commonwealth's request that the last day for trial was August 12, 1974. To confuse the issue further, the formal statement of agreement to extend the time for trial read into the record refers to the last day for trial as "8/4/74." Petitioner agreed to the extension which he now challenges.

Appellant argues that rule 1100 is "mandatory" and that the trial court must satisfy itself that the Commonwealth has exercised "due diligence" as required by section (c) of rule 1100 before granting an extension of time under the rule. Although we have never ruled on this issue, we have no difficulty rejecting this contention. Rule 1100, like the right to a speedy trial which it protects, may be waived. The "due diligence" standard of rule 1100(c), which allows involuntary extension of time for trial without violating the rule, operates only when the Commonwealth seeks, without the defendant's

[ 468 Pa. Page 160]

    consent, an extension of time in which to bring him to trial. Section (c) has no bearing on the validity of the extension agreed to in this case.*fn4 We find no error in the trial court's refusal to hold that rule 1100 may not be waived.

The Commonwealth has the burden of establishing the validity of any waiver. Commonwealth v. Cobbs, 452 Pa. 397, 305 A.2d 25 (1973); Commonwealth v. Goldsmith, 438 Pa. 83, 263 A.2d 322 (1970). In our Rules of Criminal Procedure, we have identified some formal requirements for valid waivers of important rights. In order for the Commonwealth to show a waiver of presentment to the grand jury there must be a dated and written waiver signed by the defendant and defense counsel, if represented, or executed in open court, if unrepresented. Pa.R.Crim.P. 215. A waiver of a jury trial requires the consent of defense counsel, a recorded colloquy showing the waiver to be voluntary and a dated written waiver signed by defendant and defense counsel. Pa.R.Crim.P. 1101. A guilty plea, which waives many important rights, requires a recorded, in court colloquy showing the plea to be knowing, intelligent and voluntary. Pa.R.Crim.P. 319; Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). All of these formal requirements for a waiver are intended to assure one thing -- that the decision to waive these rights is the informed and voluntary act of the defendant and can be shown to be such by reference to the record. So long as there is an indication, on ...


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