dissenting.
I must dissent from the majority’s opinion today refusing to discharge the appellant under Rule 1100(f).
On January 5, 1974, the Appellant was arrested and charged with a robbery and burglary occurring on January 4, 1974. At the time of Appellant’s arrest, the trial run date for purposes of Rule 11001 was set at October 2, 1974. On August 14, 1974, in a formal court proceeding, the Appellant waived Rule 1100. In dispute, is whether the Appellant waived his right to a speedy trial indefinitely. The trial court held that the Appellant waived his right to a speedy trial only until Appellant’s homicide trial was completed or until September 23, 1974. Since the Appellant was not tried by September 23, 1974, and excludable time amounted at most to 100 days, and the total delay was approximately 1195 days, the trial court granted the Appellant’s motion for *284arrest of judgment and discharged him. On appeal, the Superior Court (Spaeth, Brosky and Hoffman, JJ.) reversed, concluding that the Appellant’s waiver was for an indefinite time and, therefore, any delay was not violative of Rule 1100.
First, I am in agreement with the Superior Court’s ruling that Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978), is inapplicable to this case. It is clear, as we held in the Coleman case, that a waiver under Rule 1100 must be for a definite time. This ruling, however, was only to be applied prospectively. However, the inapplicability of Coleman is not dispositive of this appeal.
Prior to the adoption of Rule 1100, in evaluating whether a delay in trial was permissible, a balancing test of four factors was considered: “the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”. Commonwealth v. McQuaid, 464 Pa. 499, 518, 347 A.2d 465, 475 (1975). To alleviate the trial backlog and to more effectively protect the fundamental constitutional rights of an accused, we adopted Rule 1100. Commonwealth v. Mayfield, 469 Pa. 214, 217, 364 A.2d 1345, 1347 (1976). Through this Rule we promulgated an objective standard to protect the accused’s right to a speedy trial. Thus, Rule 1100 states:
“Rule 1100. Prompt Trial
(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”
The rule, however, is not immutable in that we permit an accused to waive it, provided such waiver is knowingly and intelligently executed. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). To insure that such waiver is knowing and intelligent, we hve held in Commonwealth v. Coleman, supra, that the accused must be advised of the ramifications of such waiver, including the intended new *285trial date, to guarantee that the defendant understands the consequences of his waiver and to assist him in making an intelligent decision as to whether he should waive Rule 1100.
Even without the Coleman rationale, the Commonwealth must still establish the scope and voluntariness of the waiver. The rule is clear that a trial commence within 270 days of the arrest, if such arrest occurred prior to July 1, 1974. Subsection (d) provides a safeguard to the Commonwealth when the delay in commencing the trial is attributable to the defendant. If the Commonwealth fails to commence trial within the mandatory time, it has the burden to prove that the delay has not been caused by its lack of due diligence.
Reviewing the record, it is clear that the Appellant did not indefinitely waive his right to a speedy trial. In a rather lengthy colloquy, the trial court discussed with the Appellant’s trial counsel the basis for the Appellant’s waiver. Trial counsel indicated that the Appellant wanted to complete a homicide trial before engaging in the robbery and burglary trial. The trial judge then inquired as to when the homicide trial would be completed. Being advised that the homicide trial was scheduled sometime after Labor Day, the court set the new trial date for September 23rd. At no time did the Appellant indicate that he was indefinitely waiving his Rule 1100 rights. Consequently, trial should have commenced prior to September 23. Excluding any subsequent continuances attributable to the Appellant, trial was commenced more than 900 days beyond that which is permissible under Rule 1100. Thus, the Appellant’s right to a speedy trial, guaranteed under the Sixth Amendment of the United States Constitution, has been violated.
The Appellant’s conviction for burglary and robbery must be reversed.
ROBERTS, J., joins in this dissenting opinion.. According to Rule 1100 applicable at that time, the trial had to commence within 270 days of the arrest. Pa.R.Crim.P. 1100(a)(1).