No. 2131 October Term, 1977, Appeal from the judgment of sentence of Stanziani, J., dated June 24, 1977, in the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 2215-76.
Van Weiss, Assistant Public Defender, Norristown, for appellant.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result. Jacobs, President Judge, files a dissenting statement in which Spaeth, J., joins. Spaeth, J., files a dissenting statement. This case was decided prior to the retirement of Jacobs, former President Judge. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 619]
Appellant was convicted of attempted burglary and possession of an instrument of a crime and was sentenced to 2-23 months in jail and one year probation. Post-trial motions were denied and this appeal followed.
Appellant first asserts that this action should have been dismissed because the Commonwealth failed to try him
[ 262 Pa. Super. Page 620]
within 180 days of the filing of the complaint. The Commonwealth, conceding that it did not bring appellant to trial within 180 days, asserts that appellant waived his Rule 1100 rights by signing a written waiver. Appellant contends, however, that this waiver was ineffective because he really didn't understand what he was signing and even if he did, he thought its only effect would be to continue the case for a two-week period.
The waiver form signed by appellant does not appear of record, however, in the testimony at the hearing on the motion to dismiss, the District Attorney read the form signed by the appellant:
I have been advised and I am aware of the implications and consequences of the above application. And I do not have objections to the continuance. I am further aware of my right to a prompt trial within one hundred and eighty days from the date of the complaint under Pennsylvania Rules of Criminal Procedure Rule 1100. I understand by requesting a continuance I hereby waive my rights to a prompt trial under Rule 1100. (N.T., p. 7)
Recently the Supreme Court of Pennsylvania in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) ruled that the following waiver form was ineffective as a waiver of Rule 1100 rights:
"I am aware and have been advised of the implications and consequences of the above application and do not have objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause a delay in having said criminal charges disposed of by the Court." (At 477 Pa. 406, 383 A.2d 1271)
The court reasoned that this waiver form was ineffective because it did not explain what "speedy trial" meant. The form used here is almost identical, except, it explains that "prompt trial" means trial within 180 days of the filing of the complaint. This change in the waiver form, we feel, satisfied the missing ingredient of the form used in Coleman, supra.
[ 262 Pa. Super. Page 621]
The appellant also testified that he had no reading impediment and had read the form before signing. The form used can be no simpler and after a review of the testimony, we agree with the lower court ...