Commonwealth v. Rodriquez

SPAETH, Judge

Dissenting:

The majority concludes that appellant executed a voluntary and intelligent waiver of his Rule 1100 rights because the written statement he signed “explained the right which [he] was surrendering, and [he] acknowledged that he understood the nature of the express waiver which he signed.” At 892. Since I can find no basis for this conclusion, I dissent.

The waiver form that appellant signed read:

*249AND NOW THIS 16 day of May, 1979, I, Oscar C. Rodriquez, defendant in the above named cases, hereby request a continuance of trial on the above named cases waiving or giving up the right to be tried within 180 days after filing of complaint as provided by Rule 1100, the right to be released without bail if in prison and not tried within two terms of criminal court, and the right to a speedy trial. It is also understood that I, Oscar C. Rodriquez, will be given no continuance due to omnibus pre-trial motions or the like. This is a full and complete waiver of time on all the cases above named. I, Oscar C. Rodriquez, defendant in the above named cases also understand there will be no remand or further “foot-dragging”.
(signed) OSCAR C. RODRIQUEZ
Defendant
I certify that I have read this verbatim to the defendant and he has indicated to me that he understands the within waiver and conditions, therein, and that he wishes to knowingly, willingly and voluntarily give up the aforementioned rights.
BEATRICE LANGDON

In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), the Supreme Court concluded that the defendant had not validly waived his Rule 1100 rights when he signed the following:

I am aware and have been advised of the implications and consequences of the above application and (have/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.

Id., 477 Pa. at 406, 383 A.2d at 1271.

The Court “refuse[d] to find waiver” because this statement “offer[ed] no explanation of what the right to speedy trial involves . . . . ” Id., 477 Pa. at 407, 383 A.2d at 1271 (footnote omitted). In Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980), the Supreme Court concluded that the *250defendant “did not intend a blanket waiver of his Rule 1100 Rights” when he signed a statement that

I hereby certify that on [December 9, 1974], Hon[orable] Alex Bonavitacola orders case continued] to January 27, 1975 [in] Room 625. Defendant's] attorney] on trial in Fed[eral] Court ... I, the defendant, waive the 270 day rule and as to speedy trial.

Id., 491 Pa. at 468, 421 A.2d at 640 (footnote omitted). The Court said:

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 nature and scope of the right which he was waiving. 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 469-69, 421 A.2d at 640 (footnote omitted).

I do not find, and the majority does not identify, any information that was provided appellant with regard to his Rule 1100 rights that was not included in the waiver statements in Commonwealth v. Manley, supra, and Commonwealth v. Coleman, supra. Appellant was not, for instance, informed that if the Commonwealth failed to prosecute him within the period required by the rule, he would be entitled to a discharge; nor, in language that he—or anyone else— could understand, how long it would be until he was brought to trial. Moreover, the form was inaccurate; appellant, “as provided by Rule 1100,” was not entitled to be tried within 180 days from the filing of the complaint against him. His trial could commence much later than 180 days from the date the complaint was issued. A continuance had been granted to the Commonwealth, and appellant had escaped. The Rule 1100 clock was stopped by both of these events.

Contrary to the majority’s statement, the form signed by appellant “explained” nothing. It merely recited, in vague, *251inconsistent, and inaccurate language, rights that appellant was purportedly waiving.

I have one other comment. Not only did the form signed by appellant fail to explain the rights being waived by appellant, but it needlessly included language that was demeaning and inappropriate to so important a document as a statement of waiver, and that could only have served to cloud appellant’s understanding. There was no reason, let alone basis in authority, to include the statements: “I [ ] will be given no continuance due to omnibus pre-trial motions or the like,” or, “I ... understand there will be no remand or further ‘foot-dragging.’ ”

The judgment of sentence should be reversed and appellant ordered discharged.