No. 2667 October Term, 1978, Appeal from Judgment of Sentence and Appeal from Judgment to Reinstate Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania No. 2986-76
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
John J. Burfete, Jr., Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 282 Pa. Super. Page 72]
Appellant was found guilty at a bench trial of Possessing Instruments of Crime*fn1 and Implements of Escape.*fn2 Post-trial motions were filed, argued and denied, and Appellant was sentenced upon each conviction to serve a term of imprisonment of not less than six months nor more than two years. The sentences were to be served concurrently with each other, but consecutively with the sentence being served by Appellant at the time of the offenses.
On appeal, Appellant asserts a violation of the provisions of Pa.R.Crim.P. 1100 (hereinafter, "Rule 1100"), and questions the sufficiency of the evidence to support his convictions. In view of our disposition, we consider only the first of these issues.
On July 21, 1976, a criminal complaint was filed against Appellant charging him with the instant offenses. By the terms of Rule 1100(a)(2) the Commonwealth was required to try Appellant not later than January 17, 1977. The case was listed for trial on January 3, 1977, and the Commonwealth was prepared for trial on that date. Neither Appellant nor his trial counsel*fn3 were prepared, however, as counsel had not then fully interviewed Appellant and had not interviewed any of the eight or nine prisoner-witnesses Appellant intended to call at trial. Appellant's counsel, therefore, requested a continuance, and in accordance with Montgomery County practice, caused to be completed a printed form styled "Application for Trial Postponement." In addition to reciting the reasons for the request, the form contained the following printed paragraph:
[ 282 Pa. Super. Page 73]
[EDIT ] IS OVERSTRUCK IN THE SOURCE.]
"IV. I have been advised and I am aware of the implications and consequences of the above application and I ([O>have*fn4
The defendant's signature was affixed directly beneath the quoted paragraph. Finally, under the printed line "V. Action taken by the Court:", Appellant's counsel caused to be inserted by typewriter, the following:
"Please relist for February 7, 1977."
The form was prepared by counsel's secretary, and counsel explained its terms to Appellant who then signed it. The prosecutor next signed the form and it was then presented to the Court. Judge BROWN affixed his signature to it without adding any further provisions, and the case was thereupon continued.*fn5 On February 7, 1977, the case was placed in what may be best described as a "ready pool" in the Assignment Room of the Montgomery County Court Administrator and was ultimately reached for trial on March 8, 1977.
On that date, immediately prior to trial, Appellant filed an application to dismiss pursuant to Rule 1100(f). At the hearing on Appellant's application to dismiss, he contended through counsel*fn6 that (1) he was "forced" to waive the provisions of Rule 1100 against his will in order to obtain a
[ 282 Pa. Super. Page 74]
continuance, and (2) the waiver included only the period from January 3, 1977, the date it was executed, until February 7, 1977, the date appearing on the form as the date upon which the case was to be relisted.
The hearing judge found that Appellant was not "compelled" to execute the waiver, further found the period between January 3, 1977 and March 8, 1977 was not "an inordinate extension of time," and refused Appellant's application to dismiss.
As earlier observed, Appellant was thereupon tried and found guilty. Post trial motions were filed, argued and denied, and Appellant appealed to this Court. On appeal, Appellant raised the instant Rule 1100 issue, contending that he waived only that period between January 3, 1977 and February 7, 1977. Finding the record to be incomplete as the waiver executed by Appellant was not presented to us, we remanded for an evidentiary hearing. Commonwealth v. Gardner, 253 Pa. Super. 233, 384 A.2d 1318 (1978). In our opinion, we said:
"It is apparent that the resolution of Appellant's Rule 1100 claim hinges on an interpretation of the scope of the January 3, 1977 waiver. We must determine whether, in signing the waiver form, Appellant knowingly consented to a complete waiver of his Rule 1100 rights, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976) or whether Appellant consented only to a waiver of the period of times specified on the form when he signed it. Commonwealth v. Coleman, 241 Pa. Super. 450 fn.1, 361 A.2d 870 fn.1 (1976)." Id., 253 Pa. Super. at 236, 384 A.2d at 1320.
We also directed the lower court to reconstruct the circumstances surrounding Appellant's waiver in order to ascertain its scope, and we suggested to the lower court that it "focus its inquiry on the contents of the form (if the original cannot be produced) and whether a date certain for the relisting of the trial was specified on the form before Appellant affixed his signature." Id., 253 Pa. Super. at 237, 384 A.2d at 1320.
[ 282 Pa. Super. Page 75]
Pursuant to our remand, the lower court held an evidentiary hearing, and thereafter filed an opinion finding (1) the Appellant knowingly executed the waiver with the knowledge that the notation "Please relist for February 7, 1977" did not "guarantee" that he would be tried on or before that date, and that such date was not, therefore, "a date certain," and (2) that Appellant's case was indeed "relisted" on February 7, 1977, in accordance with the waiver. The court also found the following:
"By agreeing that this case be relisted on February 7, 1977 the defendant herein agreed to a trial date which was beyond the Rule 1100 time limit, as did the defendant in [ Commonwealth v. ] Hickson [235 Pa. Super. 496, 344 A.2d 617 (1975)]. Accordingly defendant cannot now complain that his rights under Rule 1100 have been violated since he has thereby waived those rights."
"Thus, it having been established that defendant's waiver was an informed and voluntary act by which he agreed to a trial date beyond the 180 day limit, he cannot complain on appeal that his rights under Rule 1100 were violated, since he was afforded a prompt trial thereafter under all the circumstances."
Appellant then filed the instant appeal and argues here, again, that he waived the provisions of Rule 1100 only for the period January 3, 1977 to February 7, 1977, and as trial did not commence until March 8, 1977, some 29 days later, and 40 days after the expiration of the period mandated by Rule 1100(a)(2), the charges must be dismissed.
It is clear that as Appellant's trial commenced 40 days beyond the time required by Rule 1100(a)(2), and as the Commonwealth neither sought nor obtained an order for extension of time pursuant to Rule 1100(c), that period of delay must be excluded from ...