dissenting:
Appellant contends that the Commonwealth violated former Rule 1100(e) because it failed to retry him within 90 days after a lower court order declaring a mistrial.1 I agree and would, therefore, order appellant discharged.
These are the facts relevant to appellant’s Rule 1100 claim: On October 29, 1973, appellant’s initial trial in the Philadelphia County Court of Common Pleas ended in a mistrial when the trial judge became ill after testimony had begun. On December 27, 1973, a continuance was granted from November 20, 1973, to January 21, 1974, because appellant’s attorney was engaged in another trial.2 On March 5, 1974, appellant filed a Rule 1100(f)3 application to dismiss charges; he alleged that he should be discharged because more than 90 days had elapsed after the mistrial. On May 6, 1974, the motions court denied appellant’s application and listed his trial for June 6, 1974. Another continuance was granted from June 6, 1974, to July 15, 1974, because appel*90lant’s attorney was engaged in another trial. A third continuance extended the trial date from July 15, 1974, to July 22, 1974; the record reveals no explanation for this delay. On July 22, 1974, a continuance was granted until September 19, 1974, because appellant’s attorney had a medical problem. On September 24, 1974, appellant filed a variety of pre-trial motions, including a renewed Rule 1100(f) application. The motions court continued the trial date from September 24, 1974, to October 7, 1974, in order to study these motions. On October 7, 1974, the motions court dismissed appellant’s Rule 1100(f) application and deferred trial until November 25, 1974, because no courtroom was available. On November 29, 1974, the motions court granted a continuance until December 2, 1974, because the Assistant District Attorney was trying another case. On December 2, 1974, appellant renewed his Rule 1100(f) application; the court summarily denied this application. On December 9, 1974, a continuance was granted until January 27, 1975, because appellant’s attorney was litigating a case in federal court. The record contains the following certified statement: “I hereby certify, that on [December 9, 1974,] Honorable ALEX BONAVITACOLA orders case cont. to Jan- 27-1975 in [Room] 625. Def. atty. on trial in Fed. Court . I, the defendant waive the 270 day rule and as to speedy trial.” Appellant, his attorney, and Judge BONAVITACO-LA all signed the statement. On January 27, 1975, the motions court granted a continuance until February 18, 1975, so that appellant’s counsel could locate witnesses; on February 18, 1975, the motions court granted a continuance for the same reasons until February 26, 1975. On February 25,1975, the medical problems of appellant’s attorney necessitated another continuance until April 7, 1975. On April 7, 1975 a final continuance was granted until April 10, 1975, because appellant’s attorney again was engaged in trying another case. Finally, on April 11, 1975, appellant’s second trial commenced. On April 17, a jury found appellant guilty. This appeal followed the lower court’s denial of post-verdict motions, including appellant’s claim that the Commonwealth violated Rule 1100(e).
*91Appellant contends that the Commonwealth violated former Rule 1100(e) because it failed to retry him within 90 days after the October 29, 1973 order granting a new trial. The Commonwealth and the Majority respond that appellant waived his Rule 1100 rights in toto on December 9, 1974. I disagree.
In Commonwealth v. Myrick, 468 Pa. 155, 161, 360 A.2d 598, 600 (1976), the Supreme Court held that a defendant may waive speedy trial rights protected by Rule 1100. The Court stated that: "Rule 1100 is a rule of criminal procedure designed to implement and protect a defendant's constitutional right to a speedy trial. Its particular terms, however, are neither directly granted by nor required by the Constitution. Nevertheless, the basic requirements for making a valid waiver of constitutional rights, . . . are instructive in our consideration of the validity of a claimed waiver of the protections of rule 1100." Before a court can determine that a defendant has waived his constitutional rights, the record must demonstrate that the decision to waive these rights is an informed and voluntary act of the defendant. The Commonwealth bears the burden of establishing the validity of any waiver. Commonwealth v. Myrick, supra 468 Pa. at 162, 360 A.2d at 600.
In the instant case, the record contains a certified statement, signed by appellant and his counsel, which provides, in pertinent part: “. . Honorable ALEX BONAVITA-COLA orders case continued to January 27, 1975 . Def. atty. on trial in Fed. Court ... I, the defendant waive the 270 day rule and as to speedy trial.” The Majority construes this statement as a blanket waiver of appellant’s Rule 1100 rights. 1 believe, however, that this statement clearly reflects a negotiated bargain: Judge BONA VI-TACOLA agreed to continue appellant’s trial until his attorney finished his federal court obligations, provided that appellant agreed to waive his Rule 1100 rights for the period of time consumed in the future by the continuance.4 This *92bargain did not contemplate waiver of any Rule 1100 rights which may have accrued prior to December 9, 1974, the date of the continuance.
I also find it difficult to believe that a defendant with an appreciation of his bargaining position would knowingly waive his right to include the period before a requested continuance in his Rule 1100 computations. When asking for a continuance which would extend the trial date beyond the expiration of the applicable Rule 1100 period, a defendant must be prepared, if requested, to waive any delay caused by the continuance for purposes of Rule 1100. See Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). The waiver of any delay stemming from the continuance is the quid pro quo for the grant of the requested continuance. However, the period prior to the desired continuance normally has no relevance to this bargaining equation. A defendant who waives this prior period has nothing to gain and everything to lose. Therefore, I find it highly improbable that appellant who had filed three Rule 1100(f) applications before the December 9, 1974 continuance, would knowingly waive any Rule 1100 rights accruing before December 9,1974, when he would gain nothing in exchange for this waiver.
Because the certified statement clearly reflects a negotiated bargain—a continuance in exchange for waiver of Rule 1100 rights from December 9, 1974, to January 27, 1975,— and because appellant had nothing to gain from a blanket Rule 1100 waiver, I am unwilling to find that the Commonwealth has met its burden of demonstrating that appellant made an informed and voluntary decision to waive his Rule *931100 rights entirely.5 Accordingly, I would reach the merits of appellant’s claim.
Former Rule 1100(e) provided: "A new trial shall commence within a period of ninety (90) days after the entry of an order by the trial court or an appellate court granting a new trial." The Commonwealth asserts that this rule did not apply to orders granting a new trial after a mistrial; instead, the rule only applied to new trials granted on the basis of post-verdict motions. I disagree. In Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975), our Supreme Court decided that former Rule 1100(e) applied to any court order granting a new trial entered after June 8, 1973, the date of Rule 1100's adoption. Specifically, the Court held that the Commonwealth violated Rule 1100(e) because it failed to retry the defendant within 90 days after a Supreme Court order granting a new trial. See also Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). I discern no meaningful distinction between a trial court order granting a new trial because of a mistrial and a trial or appellate court order granting a new trial on the basis of post-verdict motions. In either case, a second trial within 90 days is required by the wording of former Rule 1100(e) and is consonant with the desire of the Supreme Court to expedite the trial and retrial of criminal cases.6 Commonwealth v. Woods, supra 461 Pa. at 258-259, 336 A.2d at 274. Therefore, *94fore, I conclude that Rule 1100(e) applies to trial court orders granting a new trial after a mistrial.
I must now determine whether the Commonwealth complied with its obligation to retry appellant within 90 days after the October 29, 1973 mistrial. In computing this 90 day period, the Commonwealth may exclude (1) extensions granted pursuant to a Rule 1100(c) petition, (2) Rule 1100(d)(1) periods of delay resulting from the unavailability of defendant or his counsel, and (3) Rule 1100(d)(2) periods7 of delay resulting from defense-requested continuances in excess of 30 days. See Commonwealth v. O'Shea, supra. Appellant's second trial did not commence until April 11, 1975, 530 days after the October 29, 1973 mistrial. Accordingly, the Commonwealth must establish that 460 days may be excluded from Rule 1100 computations pursuant to Rule 1100(c) or Rule 1100(d)(1) or (2). However, the Commonwealth never filed a Rule 1100(c) petition, and no more than 270 days of delay can be excluded pursuant to Rule 1100(d)(1) or (2).8 Therefore, I find that appellant's second *95trial commenced at least 190 days beyond the applicable Rule 1100(e) period. I would order appellant discharged.
SPAETH, J., joins in this dissenting opinion.. See Pa.R.Crim.P. 1100(e) (1974-75 Supp.). On December 9, 1974, the Supreme Court amended Rule 1100(e). See Pa.R.Crim.P. 1100(e); 19 P.S. Appendix. (Effective Dec. 9, 1974).
. The record lists the reason for the continuance as “attorney on trial.” I will assume that this continuance was granted at the behest of appellant’s attorney. However, lower courts must try to be more specific in stating the reasons for continuances.
. Rule 1100(f) provides: “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.”
. The Commonwealth could automatically exclude periods of delay resulting from the unavailability of appellant’s counsel in computing *92the 90 day period. See Rule 1100(d)(1) and discussion, infra. However, the Commonwealth still stood to gain from the negotiated bargain waiving Rule 1100 rights until a specified date. The partial waiver of Rule 1100 rights relieved the Commonwealth of any obligation to monitor the availability of appellant’s counsel until the expiration of the continuance on January 27, 1975. In short, the waiver served as a form of insurance for the Commonwealth.
. I note that appellant’s signed waiver refers to the “270 day rule” instead of the shorter 90 day Rule 1100(e) period. I do not believe that this affects the validity of appellant’s Rule 1100 waiver pertaining to the period between December 9, 1974, to January 27, 1975.
. Amended Rule 1100(e) now provides:
“(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
“(2) When an appellate court has granted a new trial, or has affirmed an order of a trial court granting a new trial, the new trial shall commence within one hundred and twenty (120) days after the appellate court remands the record to the trial court. The date of remand shall be the date as it appears in the appellate court docket.”
I intimate no opinion as to the applicability of amended Rule 1100(e) to orders granting a new trial after a mistrial.
. Rule 1100(c) and (d) provide:
“(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
“(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as result from:
“(1) the unavailability of the defendant or his attorney;
“(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.”
. In reaching this conclusion, I have excluded the following periods from my Rule 1100(e) calculations: (1) November 20, 1973 to January 21, 1974 (defense attorney engaged in other trial), (2) June 6, 1974, to July 15, 1974 (same reason), (3) July 22, 1974, to September 19, 1974 (defense attorney ill), (4) December 9, 1974, to January 27, 1975 (appellant waived this period of time in exchange for continuance), (5) February 25, 1975, to April 7, 1975 (defense attorney ill), *95and (6) April 7, 1975, to April 10, 1975 (defense attorney engaged in another trial). In making these calculations, I have assumed for the sake of expediency that the entire period of a continuance resulting from a defense attorney’s unavailability may be excluded; I make no attempt to resolve the conflict between Rule 1100(d)(1) and (2) on this issue. I will also assume that one day may be excluded pursuant to Rule 1100(d)(2) as a result of the two continuances granted appellant’s attorney to locate witnesses. Again, I make no attempt to decide whether piggybacked continuances granted for the same reason constitute a single continuance for purposes of Rule 1100(d)(2). On these questions and on Rule 1100 generally, see M. Vitiello, Speedy Trial Under Rule 1100: Administrative Ease or Administrative Agony ? 50 Temple L.Q. 513 (1977).