Commonwealth v. Guldin

ZAPPALA, Justice,

dissenting.

I dissent.

On September 12, 1976, a criminal Complaint was filed against John Guldin (“Guldin”) charging him with arson and other related offenses. Thereafter on September 13, 1976, Guldin was arrested. In accordance with Rule 1100 of our Rules of Criminal Procedure, the run date for trial was set for March 13, 1977. At a status listing conference held on February 10,1977, the trial run date was extended to May 1, 1977, or more than 180 days after the Complaint was filed. During this conference call, the Appellee was not present nor had he been apprised that the Commonwealth would request an extension of the trial date. The record also indicates that the Appellee did not authorize his attorney to *74 waive his Rule 1100 rights. After the trial was continued two more times with the Appellee’s consent, the Appellee was convicted in a non-jury trial on all charges. Thereafter, the Appellee was granted a new trial based upon grounds other than the violation of his Rule 1100 rights. Prior to the commencement of the Appellee’s second trial, the original trial counsel was permitted to withdraw as counsel, and new trial counsel was appointed to represent the Appellee. New trial counsel thereafter filed a petition to dismiss the information under Section (f) of Rule 1100, alleging that prior trial counsel was ineffective for waiving the Appellee’s right to a speedy trial, and failing to preserve the issue. This petition was denied by the Honorable Samuel Smith as untimely. After two more extensions of the new trial run date, the Appellee was again convicted of all charges in a second non-jury trial proceeding. Thereafter, Appellee filed post-trial motions asserting incompetency of his trial counsel for waiving his rights to a speedy trial without authority. The Honorable Charles A. Lord conducted a hearing on the post-trial motions after which he granted the Motion to Arrest Judgment and discharged the Appellee. Judge Lord’s decision was affirmed by the Superior Court. Petition for Allocatur was thereafter granted by this Court.

The right to a speedy trial is a fundamental constitutional right. Klopfer v. North Carolina, 386 U.S. 213 , 87 S.Ct. 988 , 18 L.Ed.2d 1 (1967). Rule 1100 of the Pennsylvania Rules of Criminal Procedure has been adopted to insure compliance with this right. Commonwealth v. Myrick, 468 Pa. 155 , 360 A.2d 598 (1976). According to Rule 1100, a criminal action commenced after June 30, 1974 “shall commence no later than 180 days from the day on which the complaint is filed”. Furthermore, Section (c)(1) of the Rule provides for an extension of the trial run date provided that the Commonwealth presents a motion, which first has been served upon the defendant, setting forth the facts upon which the Commonwealth is relying. In addition to the extension provisions of Rule 1100, certain periods of time may be excluded in the computation of the trial run date, such as the time *75 between the filing of the Complaint and the arrest of the accused when it is determined that the defendant’s whereabouts are unknown and that he cannot be found even with due diligence; any time which the defendant expressly waives Rule 1100; any time in which the defendant is unavailable; and any time that the defendant has been granted a continuance. In spite of Rule 1100 and the protection it serves, a defendant may waive this fundamental right provided that such waiver constitutes an informed and voluntary act. Myrick, supra. In Commonwealth v. Waldman, 484 Pa. 217 , 398 A.2d 1022 (1979), a plurality of this Court held that the Commonwealth has the burden of establishing that a defendant knowingly, intelligently and voluntarily waived the rights provided for in Rule 1100. The fact that the defendant’s attorney in Waldman waived the defendant’s right to a speedy trial did not negate the waiver standard set forth in Myrick .

It is clear from a review of the record that the attempted waiver of Rule 1100 was ineffective. During the post-conviction hearing, trial counsel for the Appellee testified as to the circumstances surrounding the waiver of Rule 1100 at the status conference before the Honorable Lisa A. Richette on February 10, 1977. Trial counsel acknowledged that he never discussed with the Appellee Rule 1100 nor his authority to waive the same because of the Appellee’s unavailability (R. 30a). Furthermore, after the conference on February 10, 1977, trial counsel never inquired of the Appellee whether he agreed with trial counsel’s actions (R. 23a). Clearly, then, this is not a situation in which a factual dispute exists as to whether the Appellee granted his trial counsel the authority to waive Rule 1100. Instead, the Appellant asks that we adopt a standard of implied authority to waive Rule 1100 and find under the circumstances that such waiver was effective. With this position I cannot agree. The doctrine of waiver requires a voluntary and knowing decision. In this case, the waiver involved a fundamental constitutional right. Accordingly, the Commonwealth must demonstrate that the Appellee knew of the intention to waive Rule 1100 *76 and assented to such waiver. The record in this instance is noticeably devoid of any such evidence.

Furthermore, it is apparent from the review of the transcript of the status conference that the conference judge was concerned about waiving Rule 1100 without the consent of the Appellee. The conference judge attempted to alleviate this problem by extending the trial run date under Section (d) of Rule 1100. Specifically, the conference judge extended the trial run date by excluding the time that the Appellee’s motion to quash the information was pending. This calculation was improper.

In Commonwealth v. Shelton, 469 Pa. 8 , 364 A.2d 694 (1976), we addressed the issue of judicial delay in determining excludable time. The Commonwealth argued in Shelton that any delay in the proceedings should not be chargeable to the Commonwealth because the delay was caused by the judiciary. Therefore, judicial delay should be excluded from the computation of the trial run date. In rejecting this argument, we held that it was improper for us to imply another exclusion to those enumerated in the Rule. Judicial delay is satisfactorily managed through the extension provision of Section (c). In other words, if judicial delay is preventing the Commonwealth from proceeding, the Commonwealth need only file an application with the Court and in support thereof assert that in spite of its due diligence, the trial cannot proceed. This interpretation is in compliance with the intent of Section (d) which removes that period of time which the defendant causes a delay. If the defendant is not at fault, such time cannot be assessed against him. Furthermore, in Shelton , we outlined what circumstances would justify an extension based upon “judicial delay” in that all judicial delays will not mandate an automatic extension:

“(1) situations where judicial proceedings involving prosecution of the charges are still pending or resolved so near the expiration of the mandatory period fixed by the rule or prior order granting an extension so as to *77 preclude commencing trial within the period despite the Commonwealth’s due diligence.

(2) situations where the Commonwealth is prepared to commence trial prior to the expiration of the mandatory period but the court because of scheduling difficulties or the like is unavailable.”

469 Pa. 18 , 364 A.2d 699 .

Finally, I disagree with the majority’s ruling today that defense counsel requested a continuance by his statement “[ujnder these circumstances I do not believe I would resist a motion from the district attorney if they wanted to extend the 180 day Rule, your Honor.” However, even finding this statement to be a request for a continuance does not rectify the waiving of the Appellee’s right to a speedy trial without authority or consent.

Accordingly, I would affirm the Order of the Superior Court granting the Appellee’s Motion in Arrest of Judgment and his discharge.