No. 109 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lycoming County, at No. 76-10, 087.
Robert F. Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellant.
David K. Boyer, Assistant Public Defender, Williamsport, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result of this Opinion. Hoffman, J., files a dissenting opinion. The decision in this case was made prior to the retirement of Hoffman, J. Spaeth, J., files a dissenting opinion, in which Jacobs, President Judge, joins.
[ 259 Pa. Super. Page 120]
Appellee Gary Eugene Laudenslager was arrested on November 25, 1975, pursuant to a complaint filed the same day, and was charged with various drug offenses. Due to conflicting reports (one by a defense witness) concerning the chemical composition of the allegedly-illegal substance, the Commonwealth, on May 12, 1976, filed an application for extension of time for commencing trial, simultaneously requesting the lower court to order an independent analysis of the substance. The application explained the problem of the conflicting reports and alleged due diligence. The Commonwealth also filed a "Criminal Continuance Request Form" containing essentially the same information and making the same request for additional time. The latter form was signed by appellee's attorney, agreeing to the extension of the trial date.
On May 14, 1976, the lower court issued a rule upon appellee to show cause why the trial deadline should not be extended. The rule specified that service was to be made on appellee's attorney by ordinary mail. The rule also stated: "The defendant and his attorney are hereby advised that pursuant to Rule 1100(c), the defendant shall also have the right to be heard upon the Commonwealth's application if he so desires." The last day for trial, unless extended, would have been May 23, 1976. On May 24, the lower court granted the Commonwealth's request and extended the time for trial to June 14-25, 1976.
On June 4, 1976, appellee himself filed a Motion to Quash Indictment. Hearing was held on the motion on September 13, 1976, at which time appellee testified that he had not been informed by his attorney until sometime in August of the application for extension of time, of the consent given by his attorney, or of the lower court's grant of the extension. The lower court found that consent to the extension of time had not been solicited or obtained from appellee himself, and relying on Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976), the court below held that written consent of appellee's attorney, absent appellee's presence at a colloquy
[ 259 Pa. Super. Page 121]
or appellee's written consent, was ineffective as a waiver of appellee's right under Rule 1100 to trial within 180 days. The court granted appellee's motion, quashed the indictment, and ordered appellee discharged. The Commonwealth took this appeal from the Order of September 13, 1976 granting the motion to quash.
In Myrick, the case relied upon by the lower court, our Supreme Court stated that the basic requirements (written waiver, in-court colloquy) for making a valid waiver of various constitutional rights, would be "instructive" in any consideration of the validity of a claimed waiver of the protections of Rule 1100, although the limitations established by Rule 1100 were not required by the Constitution. Since the defendant in Myrick had been present for an on-the-record colloquy and had also signed a statement consenting to the extension of time, the Supreme Court of course found a valid waiver. The Supreme Court did not rule that the formal requirement of a consenting statement signed by the defendant, or an in-court colloquy with the defendant present, would be required for a valid waiver of Rule 1100 rights. The specific issue which faces our court, i. e., whether a defendant's attorney may waive his client's Rule 1100 rights, was not before the Court in Myrick.
"At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the ...