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COMMONWEALTH PENNSYLVANIA v. CLARENCE ALLEN (10/16/81)

filed: October 16, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CLARENCE ALLEN, APPELLANT



No. 400 Philadelphia, 1980, Appeal from the Judgment of Sentence, dated February 5, 1980, of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 4591-78

COUNSEL

Arthur J. King, Chief, Appeals Division, Assistant Public Defender, Norristown, for appellant.

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Hester, DiSalle and Popovich, JJ.

Author: Disalle

[ 291 Pa. Super. Page 369]

Appellant, Clarence Allen, was found guilty in a jury trial of forgery*fn1 and criminal attempt.*fn2 Following the denial of post-trial motions appellant was sentenced to concurrent terms of imprisonment of not less than two and one-half years nor more than five years. A subsequent Motion to Modify Sentence was denied and this appeal followed.

The criminal complaint against appellant was filed on September 15, 1978. The Commonwealth was therefore, required by Pa.R.Crim.P. 1100 to bring appellant to trial by March 14, 1979. On March 2, 1979, appellant, appearing without counsel, requested the lower court to continue his case*fn3 for two weeks so that the court could assign him a second public defender.*fn4 The Commonwealth agreed to the continuance, but only if appellant signed a Rule 1100 waiver. After appellant signed the waiver, the court granted the

[ 291 Pa. Super. Page 370]

    continuance, and ordered the case reactivated in two weeks. The court also allowed the Commonwealth 120 days from March 2, 1979, within which to try the case.

On June 29, 1979, one day before the 120 day extension was to expire, the Commonwealth petitioned for an extension of time. On August 6, 1979, appellant filed a Motion for Dismissal under Rule 1100. Following an evidentiary hearing, the court filed an Order which granted the Commonwealth until September 21, 1979, within which to commence trial, and dismissed appellant's motion. Appellant's trial commenced on September 18, 1979.

Appellant's first argument is that the lower court erred in granting the Commonwealth the March 2, 1979, 120 day extension because he had requested and agreed to only a two week extension. He argues that he did not read the waiver or the order of court granting the extension, nor was he orally informed of the longer extension. Appellant concludes that any waiver of Rule 1100, for more than the two weeks he requested, was not knowingly and intelligently made and, pursuant to Rule 1100, his case should be dismissed. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

In Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976) the Court held that it is the Commonwealth's burden to prove the validity of a waiver. The Court observed that "so long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity." Id., 468 Pa. at 160, 360 A.2d at 600. A waiver of Rule 1100 is formally valid of record if a proper colloquy is conducted or the defendant signs a waiver. Id., 468 Pa. at 161, 360 A.2d at 601. Here, appellant signed the waiver. Appellant's bald contention that he did not read the waiver or the order of court is insufficient to defeat the "prima facie validity" of the waiver. We find Commonwealth v. Scott, 272 ...


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