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COMMONWEALTH PENNSYLVANIA v. DERRICK SMITH (06/06/85)

submitted: June 6, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DERRICK SMITH, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 8302-1151.

COUNSEL

Joseph S. O'Keefe, Norristown, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Tamilia and Hoffman, JJ.

Author: Wickersham

[ 348 Pa. Super. Page 85]

Derrick Smith appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County.

On January 22, 1983, police were called to appellant Smith's residence, where they found Smith and the body of his common law wife, Vivian Pickens. Pickens had been strangled with an electric cord attached to a curling iron. Appellant told police "I killed my baby and she ain't here no more." N.T. 1/30/84, 19.

Appellant was arrested and taken to the police station where he made a formal statement admitting that he had strangled Pickens. Four hours later, he tried to take his own life by hanging himself in the interrogation room.

Appellant was then referred to the Hahnemann Mental Health Services Division as a psychiatric in-patient. The Rule 1100 run date in his case was initially set at July 21, 1983. On July 12, 1983, Smith waived his Rule 1100 rights until October 21, 1983. The Commonwealth concurrently filed a timely petition to extend until the same date. At a pre-trial hearing on July 21, 1983, Smith was found incompetent to stand trial and the Commonwealth amended its original petition to request extension until a date ninety days after he was declared competent. This extension was granted. Appellant was found competent to stand trial on September 20, 1983 and the 90-day extension period was fixed at December 19, 1983. This period was subsequently extended when appellant again waived the rule until February 1, 1984. Appellant was tried on January 30-31, 1984. He was convicted of first degree murder by the Honorable Juanita Kidd Stout. Post-trial motions were filed, argued and denied on April 12, 1984, at which time appellant was sentenced to life imprisonment.

[ 348 Pa. Super. Page 86]

Smith, now represented by new counsel has filed this appeal raising five issues.*fn1 The first issue that appellant presents is whether he was brought to trial within the time prescribed by Rule 1100. The remaining issues concern the effectiveness of trial counsel in various instances before, during, and after trial.

Rule 1100, as pertinent to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R.Crim.P. 1100(a)(2).*fn2 Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c),*fn3 or by an exclusion of time attributable

[ 348 Pa. Super. Page 87]

    to defense delay under Rule 1100(d).*fn4 Commonwealth v. Fisher, 334 Pa. Super. 449, 483 A.2d 537 (1984); Commonwealth v. Colon, 317 Pa. Super. 412, 464 A.2d 388 (1983). After analyzing the procedural history of this case, we conclude that all periods of delay have been properly accounted for under the rule.

The running of the 180-day period was initially tolled by Smith's waiver of July 12, 1983 or in the alternative, by the Commonwealth's petition to extend. The running of the 180-day period was otherwise tolled during the same time by Smith's incompetency to stand trial.*fn5 The period excluded

[ 348 Pa. Super. Page 88]

    from the rule by his incompetency included all time until September 20, 1983, when appellant was found competent. At that point, in accord with the Commonwealth's amended petition to extend, Rule 1100 was further tolled for 90 days. Finally, the rule was again tolled on October 16, 1983, when appellant waived the running of the rule until February 1 of the following year.

Regarding the October 16 waiver, appellant's right to speedy trial and the effect of that right were fully discussed in the colloquy and appellant's responses show his comprehension of the right. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981); Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Since the record indicates that appellant's waiver was his informed and voluntary decision, it will be accorded prima facie validity. See Commonwealth v. Green, 503 Pa. 278, 469 A.2d 552 (1983); Commonwealth v. Carey, 313 Pa. Super. 20, 459 A.2d 389 (1983). The validity of this waiver is additionally supported by the fact that unlike the contested first waiver of July 12, 1983, the October 16 waiver was made after Smith was ...


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