Commonwealth v. Green

469 A.2d 552, 503 Pa. 278, 1983 Pa. LEXIS 790

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

On April 15, 1977, Derek Green was convicted by a jury of the burglary and robbery at the Sylvester Smith family home in Philadelphia. Prior to trial and again in post-trial motions, appellant challenged his conviction on the basis of an alleged violation of Pa.R.Crim.P. 1100(a)(1).¹ Appellant prevailed, and the trial court ultimately discharged appellant on the basis of a violation of that speedy trial provision. On appeal by the Commonwealth, a panel of Superior Court, 292 Pa.Super. 299, 437 A.2d 54, (Spaeth, Brosky and Hoffman, JJ.) reversed, and held that appellant had voluntarily and knowingly waived his right to trial within 270 days for an indefinite period of time. We granted Green’s petition for allowance of appeal and affirm.

The complaint was filed on January 5, 1974. Pa.R. Crim.P. 1100(a)(1) provides: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.” Thus, pursuant to Rule 1100(a)(1), absent any time excludable as provided in Rule 1100(c, d), the last day for trial to commence would have been October 2, 1974.

On August 14, 1974, appellant appeared with counsel in open court and waived his right to be tried as provided in Rule 1100. At that time, defense counsel engaged appellant in a colloquy as follows:

BY [Defense Counsel]:

Q. Mr. Green, speak to His Honor. How old are you?

A. 20.

Q. How far did you go in school?

A. Tenth grade.

Q. Do you read and write the English language?

A. Yes, sir.

Q. Do you realize you are here today on these four outstanding robbery charges?

A. (Indicating.)

THE COURT: Don’t nod your head. You have to answer yes or no for the record.

A. Yes, sir.

Q. Are you presently under the influence of any drugs or alcohol?

A. No.

Q. Do you physically feel well today?

A. Yes, sir.

Q. Do you understand that these cases must be tried by the Commonwealth within 270 days? Do you understand that?

A. Yes, sir.

Q. And do you understand that that period will end around October 2nd of this year?

A. Yes, sir.

Q. 1974?

A. Yes, sir.

Q. Are you willing to waive that right to have those cases tried within the 270 days?

A. Yes.

Q. Is it further your desire to have this waived because you want to have your outstanding homicide disposed of first?

A. Yes.

THE COURT: Any questions?

[Assistant District Attorney]: I have no questions.

BY THE COURT:

Q. Have you understood everything that has been said to you?

A. Yes, sir.

Q. Do you have any questions?

A. No, sir.

THE COURT: Let the defendant execute the waiver.

Appellant then executed the following: “The defendant waives the '270 day’ rule in this case — 1974 Jan. 1671 to 1678.” The waiver document was also signed by defense counsel and the court.² There are no formal requirements for a valid waiver of Rule 1100, thus, where the record discloses that the waiver is the informed and voluntary act of the accused the waiver is accorded prima facie validity. Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981). Instantly, such is the case.

Appellant himself has not asserted his waiver was invalid as involuntary or unknowing; rather, appellant attacked his waiver in the trial court on the ground that it was void for being indefinite, as it lacked an exact and precise extension date. Appellant’s expressed intent on August 14, 1974 was to waive Rule 1100 so that an outstanding homicide charge could be disposed of first. Apparently “disposed of” meant more than simply completion of the trial on the homicide charge, for the record reveals that the trial on the charges stemming from the burglary was continued again, by agreement of the prosecution and defense, in January 1976, until disposition of the post-trial motions on the homicide. As the time when the homicide charge would be “disposed of” was obviously unknown and unknowable at the time appellant executed the waiver, it is apparent appellant must have intended to waive Rule 1100 for an indefinite period of time.³

Although the trial court’s reliance on Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) (plurality opinion) was misplaced, it accurately stated that the docket entries do not clearly indicate the precise amount of time during each continuance which is attributable to appellant. While we are not prepared to agree it is “manifestly clear that fewer than 100 days are chargeable to the [appellant],” as stated by the trial court, it seems safe to conclude that where, as here, more than three years elapsed before appellant was brought to trial and there was no Commonwealth petition for an extension, appellant would, in all probability, be entitled to a discharge but for his waiver of Rule 1100 for an indefinite time.

On the record before us, we hold appellant executed a voluntary and informed waiver of Rule 1100 for an indefinite period of time, and that waiver was a valid one; thus, he is not entitled to a discharge pursuant to Pa.R. Crim.P. 1100(f).

Order of the Superior Court is affirmed.

ZAPPALA, J., files a dissenting opinion in which ROBERTS, C.J., joins.

Footnotes

1

, Appellant has not alleged and, thus, we make no comment on whether his constitutional right to a speedy trial was abridged.

2

. At the time appellant executed the waiver, the court set a trial date for September 23; however, as he was then in court on another matter, appellant’s trial was continued on September 23.

3

. This conclusion is buttressed not only by appellant's attack on his waiver in his petition to dismiss that "failure to set an exact and precise extension date is a violation of Pennsylvania Rule of Criminal Procedure 1100(c),” but also by his attorney's assertion at the hearing on the petition that "It was an open-ended waiver.”