dissenting:
The majority affirms the judgment of sentence of the court of common pleas and holds that appellant knowingly waived his Rule 11001 right to a speedy trial when his counsel requested a continuance. I disagree. I can find no support in the record for the majority’s finding of waiver, and would therefore remand the case to the court of com*121mon pleas for an evidentiary hearing to determine whether the actions of appellant’s counsel on April 11, 1977, constituted a representation of an effective waiver of Rule 1100.
The pertinent facts are as follows. A criminal complaint was filed against appellant on September 2, 1976. Under the precept of Rule 1100(a)(2), the Commonwealth had 180 days, or until March 1, 1977, to bring appellant to trial. Trial commenced on May 2,1977, 242 days after the filing of the complaint. Trial had been initially scheduled for January 17, 1977, but appellant failed to appear. A bench warrant was issued and was later withdrawn on March 7, 1977, when appellant was arrested and bail set. Appellant requested and received a continuance on April 11, 1977, to secure private counsel, and prior to trial on May 2, 1977, the court of common pleas denied a petition by appellant to dismiss the charges under Rule 1100.2
The disputed waiver resulted from the following dialogue which occurred on the day appellant requested a continuance to secure private counsel.
“THE COURT: What is the situation with regard to a trial date? Certainly Mr. McCulley, if there is a possibility of securing counsel of [your] own choice he should do so. I am willing to go along with that.
Do you want to fix trial for a date certain at this point?
What does my criminal calendar look like?
MR. SCHENCK [Assistant District Attorney]: The next criminal date is May 2nd.
THE COURT: What is the situation with regard to Rule 1100?
MR. WASSERBLY [Assistant Public Defender]: I have already filed an application for Rule 1100.
THE COURT: I will grant the continuance until May 2nd. On that date it’s going to be tried unless there is some reason why it should not be. But I am letting you know that that’s the date that is fixed for trial.” (N.T. 4/11/77 3-4).
*122The majority opinion states that “appellant knowingly waived Rule 1100 because the public defender representing him advised the court that there was a pending application to dismiss under Rule 1100 challenging the exclusion of the first forty-eight (48) day period. It is fair to assume appellant was aware of the rule’s mandate.” (At 1278). I disagree. The above-quoted in-court exchange does not establish waiver.
In Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976), our supreme court stated that the formal requirements (e. g., an on-the-record colloquy or a statement signed by the defendant and endorsed upon the indictment) for a waiver of important rights are intended to assure one thing — that the decision to waive those rights is the result of a voluntary and informed act of the defendant and can be demonstrated as such by reference to the record.
“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. Absent this record indication of validity, the waiver will be ineffective. Moreover, these , are merely formal indications of validity. In any waiver situation, the defendant may still attempt to prove that the waiver is invalid by showing that it was unknowing, unintelligent or involuntary.” Commonwealth v. Myrick, supra, 468 Pa. at 160-61, 360 A.2d at 600.
The court refined its position in Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979), where it held that although a formal on-the-record colloquy shall not be required for a waiver of Rule 1100 protections to be valid, nevertheless, the Commonwealth has the burden of establishing that appellant's waiver was knowing, intelligent and voluntary. “To require anything less for a valid waiver of a rule designed to implement and protect a ‘fundamental’ constitutional right is clearly unacceptable. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).” Commonwealth v. Waldman, supra, 484 Pa. at 232, 398 A.2d at 1030. In Waldman, the supreme court remanded to the trial court *123because it was not clear on the record whether counsel’s approval of a suggested time period for trial beyond the run time under Rule 1100 constituted a representation of an effective waiver, i. e., it had to be shown that Waldman knowingly, intelligently and voluntarily assented to the waiver of his Rule 1100 right. In the instant case, counsel’s statement that a petition to dismiss had been filed, without more, is insufficient to establish that appellant was knowingly, intelligently and voluntarily waiving his right under Rule 1100. Absent this waiver, trial did not commence until the 193rd day for Rule 1100 purposes,3 clearly a violation of the Rule.
However, on the state of the instant record, I am unable to determine whether or not appellant’s counsel’s approval of a suggested time period for trial beyond the expiration date mandated by Rule 1100 constituted a representation of an effective waiver, i. e., knowing, intelligent and voluntary waiver by appellant. See Commonwealth v. Waldman, supra. Accordingly, I would remand the case to the court of common pleas for an evidentiary hearing to determine whether the actions of appellant’s counsel on April 11, 1977, constituted a representation of an effective waiver. If the *124court of common pleas would determine that the evidence establishes a knowing, intelligent and voluntary waiver by appellant, I would allow the judgment of sentence to stand. However, if the lower court would find that the evidence does not establish a waiver, then I would reverse the judgment of sentence and order appellant discharged.
. Pa.R.Crim.P. 1100.
. The court of common pleas also denied a motion by appellant for a further continuance in order to secure private counsel.
. This figure of 193 days excludes that 49-day period from January 17, 1977, to March 7, 1977, which represents the span of time from appellant’s failure to appear at trial to the time his whereabouts were discovered by police. Since appellant previously had been apprised of the trial date and failed to appear, the time up to his subsequent apprehension is automatically excludable under Rule 1100(d)(1), and the Commonwealth need not demonstrate due diligence in its attempts to apprehend him. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).
The time consumed by the continuance granted on April 11, 1977, does not alter our calculation. Under section (d)(2) of Rule 1100, with respect to defense requested continuances, only those days of the continuance in excess of thirty are excluded from calculation of the run time. Because the continuance in the instant case only totalled 21 days, no days are excluded. Once it became apparent that appellant was asking for a continuance which would take the trial date beyond the 180th day, it was incumbent upon the Commonwealth either to obtain an on-the-record colloquy establishing a waiver by appellant or to petition for an extension before the 180th day. Absent these courses of action, the Commonwealth’s only recourse was to prove that appellant’s “waiver” was knowing, intelligent and voluntary — a burden of proof which it has failed to sustain.