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COMMONWEALTH PENNSYLVANIA v. BRUCE MARTIN (06/11/82)

filed: June 11, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE MARTIN, APPELLANT



NO. 1358 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 2692-79.

COUNSEL

Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, for Norristown, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 300 Pa. Super. Page 500]

Appellant was convicted, in a jury trial, of retail theft (second offense).*fn1 Post-trial motions were denied and appellant

[ 300 Pa. Super. Page 501]

    was sentenced to serve one to two years in prison, consecutive to any sentence then being served or to be served. A motion for reconsideration of sentence was denied. This appeal followed.

The first contention raised on appeal is that the lower court erred in denying appellant's motion to dismiss pursuant to Rule 1100, Pennsylvania Rules of Criminal Procedure.

The criminal complaint in this case was filed on June 12, 1979. The run date for Rule 1100 purposes was December 9, 1979. The case was called to trial on October 11, 1979. At that time appellant appeared unrepresented by counsel and requested a postponement to secure counsel. The written motion for a postponement contained a Rule 1100 waiver, which was signed by appellant.*fn2 At the bottom of the motion was an order signed by Judge Vogel directing the case be tried within 120 days. On December 13, 1979, appellant filed his motion to dismiss pursuant to Rule 1100. The court denied the motion on January 3, 1980, prior to trial. Appellant argues here as he did in post-trial motions that he was coerced into signing such waiver as he was forced to choose between representation by counsel and preserving his right to be tried within 180 days. Appellant argues that as he challenged the validity of the waiver, the Commonwealth had the burden of sustaining the validity of the waiver.

Appellant's position is without merit. So long as there is an indication on the record that the waiver is an informed and voluntary decision we will presume it to be

[ 300 Pa. Super. Page 502]

    valid. A bald contention that such waiver is involuntary is insufficient to defeat the waiver. Commonwealth v. Allen, 291 Pa. Superior Ct. 366, 435 A.2d 1270, 1272 (1981). Here the waiver demonstrates appellant was adequately informed and voluntarily signed it. His claim that he was forced to choose either representation by counsel, or his right to a speedy trial is unpersuasive. Commonwealth v. Rodriquez, 291 Pa. ...


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