No. 997 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 74-01-1673-1674
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Donald M. Moser, Philadelphia, for appellee.
Spaeth, Brosky and Hoffman, JJ.
[ 292 Pa. Super. Page 300]
Derek Green was convicted by a jury of burglary and robbery on April 15, 1977. Green then filed post-verdict motions included in which he asserted that his "waiver of [Pennsylvania Rule of Criminal Procedure 1100] without an exact and precise rule extension date is a violation of [the Rule] . . ." A motion in arrest of judgment was granted. The Commonwealth appeals.
Green was arrested on January 5, 1974. At that time, Rule 1100 stated that trial should commence 270 days later, or, in this case, on or before October 2, 1974. On August 14, 1974, Green waived Rule 1100. The Commonwealth states that he waived it indefinitely. Green states it was only waived until September 23, 1974, the date the trial court set for trial. On March 24, 1977, Green filed a petition to dismiss pursuant to Rule 1100(f). The petition was denied.
[ 292 Pa. Super. Page 301]
Trial commenced on April 14, 1977, 1195 days after Green was arrested.
In Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980), our Supreme Court said:
It is clear that "Rule 1100, like the right to a speedy trial which it protects may be waived." Commonwealth v. Myrick, [468 Pa. 155, 159, 360 A.2d 598, 600 (1976)]. The Commonwealth must prove the validity of the waiver, however, by showing that it was the product of an informed and voluntary decision. Id., Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). On this record, we cannot conclude that the December 9 waiver evidences an intelligent decision by appellant to waive his Rule 1100 rights in toto. As in Commonwealth v. Coleman, supra, the statement signed by appellant contains no indication that he understood the notice and scope of the right which he was waiving. [footnote omitted] Although an on-the-record colloquy is not necessary, we do require proof that the defendant understood the consequences of his act.
Id., 491 Pa. at 468, 421 A.2d at 640.
The waiver in the instant case is evidenced by a form providing only that Rule 1100 is waived and by an on-the-record colloquy. The form contains absolutely no information indicating that the appellee "understood the nature and scope of the right which he was waiving." Id. There is also an on-the-record colloquy which provides additional information regarding Green's understanding of the waiver. The record discloses the following exchange between the trial court and the appellee during the colloquy:
Q. Do you understand that these cases must be tried by the Commonwealth within 270 days? Do you understand that?
Q. And do you understand that period will end around October 2nd of this year?
[ 292 Pa. Super. Page 302]
Q. Are you willing to waive that right to have these cases tried within the 270 days?
Q. Is it further your desire to have this waived because you want to have your outstanding ...