Nos. 741 & 749 January Term 1977, Appeals from the Judgments of Sentence, Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at Nos. 316, 317, 318 October Term 1976, No. 741 in the Supreme Court on November 9, 1977 No. 749 in the Superior Court on November 15, 1977, and certified to the Supreme Court on November 15, 1977
Joel W. Todd, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Nancy Wasser, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., filed a dissenting opinion.
Appellant, Harry Evans, was convicted by jury of murder of the second degree, robbery, and criminal conspiracy. Post-verdict motions were denied, and Evans was then sentenced to life imprisonment on the murder conviction and to concurrent prison terms on the other convictions. A direct appeal to this Court from the judgment of sentence on the murder conviction followed. A simultaneous appeal to the Superior Court from judgments of sentence on the non-homicide charges was certified to this Court. We consolidated the appeals.
Evans asserts four assignments of error.
First, he maintains his conviction was obtained in violation of his rights under Pa.R.Crim.P. 1100 (hereinafter: Rule 1100) which requires a defendant be brought to trial within 180 days of the filing of the criminal complaint. The complaint in this case was filed on September 9, 1976, and the Rule 1100 period would have ended on March 8, 1977. However, on January 21, 1977, after an on-the-record colloquy during which Evans was fully advised of his right to a trial within 180 days, he signed an agreement waiving commencement of trial until April 20, 1977. This waiver was executed because Evans' counsel was not available for trial until after March 15, 1977 due to a health problem.*fn1 Notwithstanding the written waiver, on March 17, Evans filed a pro se motion to dismiss for violation of Rule 1100. This was denied on April 11; jury selection began the same day; and, the taking of testimony commenced on April 14.
Evans contends the Rule 1100 waiver he executed on January 21, 1977 was not knowing and intelligent because he did not understand his right to a speedy trial and the effect of the waiver. He further claims his pro se motion to
dismiss of March 17 constituted a revocation of his written waiver. We disagree with both contentions.
Evans' signed agreement and the on-the-record colloquy, which preceded his signing, establish, prima facie, that his Rule 1100 waiver was informed and voluntary. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Cf. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979). Although Evans contends he did not understand his speedy trial rights and the effect of a waiver, these matters were thoroughly discussed during the colloquy, and Evans' responses indicate his comprehension. Furthermore, since Evans' ...