Commonwealth v. Waldman

NIX, Justice,

dissenting.

In my judgment, the result reached by the majority in this case today is neither compelled by constitutional mandate nor required by precedent. Moreover, I do not view it as a *237 wise exercise of our supervisory power since I am firmly convinced that it is jurisprudéntially unsound.

Although a waiver of the sixth amendment speedy trial guarantee requires the showing of “an intentional relinquishment or abandonment of a known right or privilege”,. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938), the actions of counsel in this regard are imputed to the defendant, except in limited situations not here involved. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 534-36 , 292 S.Ct. 2182 , 33 L.Ed.2d 101 (1972) noted that where no question is raised as to counsel’s competency, counsel’s failure to assert a speedy trial claim is imputed to the defendant who is bound thereby. 1 This reasoning is obviously at variance with the majority’s premise today, that a waiver of Rule 1100 must be the personal decision of the defendant. Thus, the majority has reached the absurd conclusion that although the underlying constitutional right may be waived by competent counsel, the presumptive rule, designed to implement the protections of the basic right, is constitutionally compelled to require a waiver to be made only by the defendant himself. Here Waldman has not challenged the competency of his counsel or alleged that his counsel was ineffective in failing to object to the scheduling of the trial date beyond the presumptive period. I, therefore, can find no constitutional infirmity with the trial court’s judgment that there was a valid waiver of the rule in this case.

*238 I also confess that I cannot grasp the limitation that the majority seeks to impose upon this “newly found right”. The majority states:

. the Commonwealth has the burden of establishing a defendant’s waiver of his Rule 1100 right 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.

At 1030.

And yet in the footnote to this portion of the text, the following appears:

We strongly emphasize that our decision today does not in any way require the Commonwealth to establish a defendant, represented by counsel, knowingly, intelligently and voluntarily waived his right to object to a Rule 1100(c) extension application.

Id. at n.17 (emphasis in the original) (citation omitted).

No one has argued or even suggested that counsel’s agreement to the scheduling of the trial “between the latter part of April through the entire month of May” constituted an attempt to make a blanket waiver of Rule 1100 in this case. Obviously, the court below treated this situation as a section (c) application for extension for the period indicated which was agreed to by counsel for the defense. I, therefore, must construe footnote 17 as requiring the “newly found protection” to be afforded only where the formal requirements of section (c) (i. e., the filing of a written request for an extension) have not been complied with. This to me is pure nonsense.

Moreover, since the majority has made no attempt to exclude section (d) from the purview of its new principle, I must assume that any period which is determined to be excludable under its terms, must first be determined to have occurred with the defendant’s “knowing, intelligent and voluntary” concurrence. I know of no decision of this Court that has suggested such a proposition.

*239 The majority’s reliance upon Commonwealth v. Myrick, 468 Pa. 155 , 360 A.2d 598 (1976), is misplaced as that case does not support the view advanced by the Court today. In Myrick , we stated “Rule 1100 is a rule of criminal procedure designed to implement and protect a defendant’s constitutional right to a speedy trial. Its particular terms, however, are neither directly granted nor required by the Constitution”. 468 Pa. at 161 , 360 A.2d at 600 .

A further defect in today’s decision is its monumental impact on the administration of criminal justice in this Commonwealth. To force the prosecution to prove that contemporaneous with every action or inaction affecting the computation under Rule 1100 as to when trial must commence was achieved after a knowing, intelligent and voluntary waiver by the defendant personally, is to place an almost insurmountable obstacle in the Commonwealth’s path. Such a burden ignores the realities of criminal litigation and would render the effective administration of Rule 1100 impossible.

I, therefore, dissent.

. In Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2192 , 33 L.Ed.2d 101 (1972), the Supreme Court imputed the failure of Barker’s counsel to object to continuances requested by the prosecution to mean that Barker personally agreed to such actions for speedy trial purposes. The Court noted that “no question is raised as to the competency of’ Barker’s counsel and that counsel was employing a valid defense strategy. Id. at 534, 535-36 , 92 S.Ct. at 2194 . The Court indicated that there were three circumstances when the actions of counsel would not be imputed to the defendant for speedy trial purposes: (a) where the defendant was represented by incompetent counsel, (b) where the defendant was severely prejudiced by his counsel’s action, or (c) where the prosecution’s continuances were granted ex parte. Id., at 536 , 92 S.Ct. 2182 .