Commonwealth v. Krasner

*414SPAETH, Judge,

dissenting:

I do not agree that defendant voluntarily and knowingly waived for an indefinite and unlimited period his right to a speedy trial as provided by Pa.R.Crim.P. 1100. An abiding temptation is to bend the rules when the case is nasty. Here, I suggest, the rules have been bent. Once bent, rules don’t work well.

In Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) (plurality opinion), Justice O’BRIEN wrote that the defendant’s waiver was invalid because the form he signed “offer[ed] no explanation of what the right to a speedy trial involve[d].” 477 Pa. at 406, 383 A.2d at 1271.1 The form was:

*415I 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.

In Commonwealth v. Thompson, 262 Pa.Super. 211, 396 A.2d 720, 723 (1978), it was noted in the concurring and dissenting opinion that the defendant should not be held to have waived his Pa.R.Crim.P. 1100 rights because the colloquy, which was substantially identical to the waiver form in Coleman, did not specify for how long a period he was waiving his right to trial, nor did it inform him that the result of a successful Pa.R.Crim.P. 1100 motion would be final discharge. Most recently, in Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980), our Supreme Court vacated a judgment of sentence and discharged the defendant after finding that he “did not intend a blanket waiver of his Rule 1100 rights” by signing a statement that

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

The Court held that “[o]n this record, we cannot conclude that the ... 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 *416nature 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.” (491 Pa. at 468, 421 A.2d at 640.)

The colloquy in the present case was as lacking as those in the above-cited cases. There is no indication that appellant understood by his statements at the colloquy that he was waiving his right to a speedy trial or to a discharge for violation of that right. The record does not support but contradicts the majority’s assertion that by his statements at the colloquy, “appellant waived his Rule 1100 rights indefinitely. (At-, emphasis added.) Appellant’s statements at the colloquy, as quoted by the majority, make clear that he only agreed to delay trial for a short period of time—until the earliest possible trial date. Thus appellant said, “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?” and, “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.” (6/12/74 N.T 14) Nothing in these statements or anywhere else in the record suggests that appellant understood, and agreed, that the Commonwealth could delay the trial indefinitely, or that the trial might occur, as it did in the present case, eight and one-half months later.

At most, appellant waived his Pa.R.Crim.P. 1100 rights until October 2, 1974, the date of the next listing of the case.2 This, however, leaves unexplained the period from October 2 until March 10, when the trial was finally held. The record suggests that a considerable part of the delay during that period was attributable to the court or the Commonwealth. Nevertheless, there may have been periods of delay prior to the waiver that might have been excludable had the lower court reached the issue.

Therefore, I should vacate the judgment of sentence and remand with instructions to the lower court to make a new *417computation of the period during which appellant had to be brought to trial under Pa.R.Crim.P. 1100, and to enter such order, either reinstating the judgment of sentence or discharging appellant, as may be required.

CERCONE, President Judge, joins in this opinion.

. The majority states in footnote 5 of its opinion that on the date of the continuance, “the trial court did not have the benefit of our Supreme Court’s directive in Commonwealth v. Coleman, 477 Pa. 400, 406, 383 A.2d 1268, 1271 (1978), requiring that all continuances be granted for a specified period.” (At-, n. 5) This observation does not justify the majority’s failure to follow Coleman. Neither did the trial court in Coleman “have the benefit of our Supreme Court’s directive.” A decision announcing a change in the law will be *415applied to cases pending on direct appeal, as this one was when Coleman was decided. Commonwealth v. Williams, 232 Pa.Super. 339, 331 A.2d 875 (1974). Furthermore, a decision that does not change the law but rather decides an issue of statutory construction not previously decided by an appellant court is regarded as part of that statute from the date of the statute’s enactment. Daniels v. State Farm Mutual Automobile Ins. Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980); See also Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947); Harry C. Erb, Inc. v. Schell Construction Co., Inc., 206 Pa.Super. 388, 213 A.2d 383 (1965). The decision in Coleman was this sort of decision, involving as it did the construction of a rule of court.

. See Commonwealth v. Gardner, Jr., 282 Pa.Super. 70, 422 A.2d 832 (1980) (appellant signs Rule 11(K) waiver, writing “please relist for February 7;” his waiver is limited to that date).