No. 128 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Luzerne County, Criminal Division, No. 422 of 1974.
Francis P. Burns, Pittston, for appellant.
Michael C. Kostelaba, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Brosky and Wickersham, JJ. Spaeth, J., files a dissenting opinion in which Cercone, President Judge, joins.
[ 285 Pa. Super. Page 395]
Following a jury trial commenced on March 10, 1975, appellant was found guilty of solicitation to commit murder.*fn1 Post-verdict motions were denied and appellant was sentenced to a one to two year term of imprisonment. He now alleges numerous instances of error, none of which we find meritorious. We therefore affirm the judgment of sentence.*fn2
Briefly summarized, the salient facts are these. On or about November 3, 1972, appellant, owner and operator of adult bookstores in eastern Pennsylvania and New Jersey, solicited one James Flood to murder appellant's competitor and former partner, Allen Morrow. Flood informed appellant that it would cost $20,000 to have Morrow eliminated, $10,000 to be paid in advance with the balance due following the murder. At a subsequent meeting between appellant, Flood, and Flood's girlfriend, Catherine Bobrowicz, appellant delivered $10,000 in cash in a brown paper bag and told Flood: "Here's my part of the bargain. You keep yours. Hit Morrow and hit him quick." On or about August 19, 1973, Flood contacted Morrow, informed him that appellant wanted him killed, and offered instead to murder appellant for a price. Flood, Morrow, and Morrow's son met the following day at which time Flood reiterated that appellant had hired him to kill Morrow and again offered to "hit" appellant. Unbeknownst to Flood, Morrow recorded the
[ 285 Pa. Super. Page 396]
conversation with a cassette tape recorder concealed upon his person. Shortly thereafter, Morrow contacted the Pennsylvania State Police, informed them of Flood's information and offer, and produced the tape of the August 20, 1973 meeting. Morrow agreed to cooperate with the police and Flood was ultimately arrested on August 26, 1973 as he received a purported payment from Morrow. During interrogation, Flood informed the police that appellant had hired him to kill Morrow and recounted the events of November, 1972. Further investigation corroborated Flood's narrative, and appellant was arrested on October 2, 1973 and charged with solicitation to commit murder.
Appellant's first and principal contention on appeal is that the trial court erred in denying his timely motion to dismiss the charge against him pursuant to Pa.R.Crim.P. 1100(a)(1).*fn3 We conclude that appellant's unqualified waiver of his right to a prompt trial, which waiver he executed during a lengthy colloquy conducted by the trial court in the presence and with the consent of both of his attorneys, renders his contention meritless.
The facts pertinent to our disposition of appellant's Rule 1100 claim are as follows. Following his arrest, a criminal complaint was filed against appellant on October 9, 1973. The Commonwealth thus had 270 days, or until July 6, 1974, to bring appellant to trial. Appellant's trial was originally scheduled to begin on May 30, 1974. At a pretrial hearing on that date appellant's motion for a continuance was denied. Trial was nonetheless postponed until June 3, 1974, because the trial judge was unavailable. On the morning of June 3, appellant filed an Application for Writ of Prohibition with this court to direct the trial court to grant the the requested continuance. On June 11, 1974, after argument, we decline to issue the writ. On June 12, 1974, following appellant's appearance before the trial court on an unrelated
[ 285 Pa. Super. Page 397]
matter, the district attorney asked that the instant case be called to trial. Appellant's counsel thereupon requested a continuance, and the following colloquy took place:
THE COURT: All right, what is your position about the two-seventy-day rule, are you satisfied to waive that?
MR. MIELE [Appellant's Counsel]: Yes, your Honor.
MR. LEVY [Appellant's Counsel]: No problem.
THE COURT: Would you swear Mr. Krasner, please?
JOHN KRASNER: being duly sworn, testified as hereinafter appears.
THE COURT: Mr. Krasner, I presume you know what has transpired because you were in the court room, but so there would not be any misunderstanding the Court specifically directs or instructs you now that Mr. Toole, having been informed by the Superior Court of this Commonwealth that your request for writ of prohibition is denied, he requested the Court to start your trial today, immediately, now.
In accordance with the Rules of Criminal Procedure and the holdings of the United States Supreme Court and the Supreme Court of this Commonwealth, you are entitled to go to trial within no later than two hundred and seventy days from the date in which the written complaint was filed, which Mr. Muroski just stated was November 8, 1973.*fn4
Both your lawyers, as you know, have asked the Court to continue this case until sometime in the future. If the Court does grant the request that has been made by your counsel in this case, more than two hundred seventy days will have transpired prior to the date fixed for your trial.
The Court will not grant a continuance under any circumstances if you don't agree to waive any rights that you have to a speedy trial under both the United States
[ 285 Pa. Super. Page 398]
and Pennsylvania constitutions and under the Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Do you understand what I am talking about ?
MR. KRASNER: Yes, I do, your Honor.
THE COURT: Do you have any questions you want to ask me about it?
MR. KRASNER: May I just make a statement?
MR. KRASNER: It pertains to this.
MR. KRASNER: I want to go to trial. No one wants to go to trial right now any faster than me, I've had it. All right?
Now, all we asked that day in Judge Brominski's office, your Honor, I was incarcerated, I had no way -- this isn't a cop out, I want this trial, I've had it and I'm tired of being accused of looking for continuances. And all I have asked in this exculpatory thing is, if you're interested in justice, why are you so adamant in denying us what you have.
I would like a trial, I would like trial date set, your Honor, so I can have witnesses here. I have to ask witnesses to take off from work to be here. There are some witnesses that are incarcerated in the Luzerne County Jail that I would like to have here and I want to make sure that I have my witnesses.
The trial, I would like to start immediately if I was prepared for it. If you can set a date for it, I would be perfectly happy.
I do waive that two hundred and seventy day requirement.
THE COURT: Because it is possible that your case may not be scheduled within that two hundred seventy day period.
MR. KRASNER: That I waive, your Honor.
[ 285 Pa. Super. Page 399]
THE COURT: The Court doesn't want any misunderstanding now. You are represented by competent counsel who understand, I'm positive they understand, but I don't want any misunderstanding with you in connection with Page 399} this. And may I ask you this, sir; do I take it that you now join with your lawyers in requesting this continuance and that you specifically waive your right, as I ...