Com. v. Guldin

• Decision Date: 01 August 1983
• Citation: 502 Pa. 66,463 A.2d 1011
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. John GULDIN, Appellee.
• Court: Pennsylvania Supreme Court

Page 1011

463 A.2d 1011

502 Pa. 66

COMMONWEALTH of Pennsylvania, Appellant, v. John GULDIN, Appellee.

Supreme Court of Pennsylvania.

Submitted Jan. 28, 1983.

Decided Aug. 1, 1983.

[502 Pa. 67] Eric B. Henson, Deputy Dist. Atty., Philadelphia, for appellant.

John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

McDERMOTT, Justice.

On September 13, 1976, appellee John Guldin was arrested and charged with arson and other related offenses in connection with a fire that was set to appellee's home the night before in Philadelphia, which spread to six surrounding homes and endangered the lives of nearly twenty people in that area.

In accordance with Pa.Rule of Criminal Procedure 1100(a)(2), ¹ appellee was required to be brought to trial on or before March 13, 1977. At a status listing conference on February 10, 1977, the trial judge extended the Rule 1100 run-date from March 13, 1977, until May 1, 1977. ² Thereafter, appellee twice personally waived his Rule 1100 rights, on April 14 and July 29, 1977, and was thereafter brought to trial on September 20, 1977. At a bench trial, appellee was convicted of three counts of arson and of related offenses, but was granted a new trial by the trial judge, based upon appellee's allegations of trial error. At retrial on July 17, 1978, appellee, represented by new counsel, was again convicted at a bench trial of all charges. However, on November 2, 1978, the trial judge granted appellee's post-verdict motion in arrest of judgment and ordered the appellee discharged. The trial judge's ruling was premised on a finding that appellee's Rule 1100 rights had been violated prior to his first trial when appellee's counsel failed to object to the trial court's recalculation of the Rule 1100 run date, since appellee had not personally waived his Rule 1100 rights. The Commonwealth of Pennsylvania, as appellant in this matter, appealed that decision to the Superior Court, which affirmed the lower court's determination. From that decision, ³ we now reverse. ⁴

A close examination of the record of the status listing conference of February 10, 1977, when the Rule 1100 run-date was extended reveals the following: Appellee's counsel initiated the conference by advising the court and the prosecutor that his client had voluntarily entered Eagleville Hospital for rehabilitation treatment for drug and alcohol abuse, and that his client would be receiving treatment for the ensuing two months. Since the Rule 1100 run-date was March 13, 1977 and appellee would still be undergoing his hospitalized rehabilitation at that time, defense counsel told the court, "[u]nder these circumstances, I do not believe I would resist a motion from the district attorney if they wanted to extend the 180 day Rule, your Honor." Record, 2/10/77 at p. 2. When the court inquired of the prosecutor whether he was going to file a petition to extend, the prosecutor was not given full opportunity to answer the question. Rather the trial judge intervened and incorrectly ⁵ extended the run-date by 49 days. Thereafter, the prosecutor noted for the record, "I would state, we were ready to go to trial, we always have been ready to go on trial on this case." Record, 2/10/77 at p. 5.

In addition, the record shows that appellee's counsel at the first trial had several reasons--all designed to effectuate his client's best interest--for wanting the Rule 1100 run-date to be extended. At the post-verdict hearing following appellee's second trial, appellee's initial trial counsel testified that it was an integral part of the defense strategy to have the trial postponed in order to enable the appellee to better assist in the preparation of his case and to more effectively testify in his own behalf. Furthermore, counsel noted that he had hoped the trial postponement would allow victims whose homes had been damaged by appellee's actions to testify in a less hostile and emotional manner than they had at the preliminary hearing. Also, counsel aptly pointed out that in the event of appellee's conviction, his successful completion of the rehabilitation program would permit him to argue for mitigation of his sentence. ⁶ It must also be noted, however, that initial trial counsel at the post-verdict hearing, admitted having had no authority to waive Rule 1100 on his client's behalf at the time of the status conference.

Within this scenario, the lower courts found that appellee's counsel, by not objecting to the improper extension of time, effectively waived his client's Rule 1100 rights without authority to do so. While a criminal defendant may waive his Rule 1100 rights only if such waiver constitutes an informed and voluntary act, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976), we do not find that this case involves the waiver of Rule 1100. Rather, we find that the Rule 1100 run-date was properly extended as excludable continuance time. At the time of appellee's trial, Rule 1100(d)(2) ⁷ provided, "[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (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."

Since it is clear from the record that the Commonwealth was prepared to go to trial within the period set out in the Rule and that defense counsel was neither ready nor willing to proceed to trial within this period, we find that defense counsel's statement, "(u)nder these circumstances, I do not believe I would resist a motion from the district attorney if they wanted to extend the 180 day Rule, your Honor." was, in effect, a request for a continuance. That the trial judge extended the Rule 1100 run date on other grounds will not bar this Court from finding the extension proper as excludable continuance time where the circumstances surrounding the trial judge's decision so patently justify such a finding. Rule 1100 was never intended to be used as a device by which a defendant may escape responsibility for his actions, especially where such defendant makes a representation through his attorney that it is not in his best interests to proceed to trial.

Accordingly, the order of the Superior Court is reversed and this case is remanded to the Court of Common Pleas of Philadelphia for sentencing.

NIX, J., files a concurring opinion.

ZAPPALA, J., files a dissenting opinion.

NIX, Justice, concurring.

The facts of this case clearly demonstrate the error of the order of discharge entered by Judge Lord and affirmed by a panel of the Superior Court. From this record it is apparent that the Commonwealth was ready and willing to try this case prior to the original run date of March 11, 1977. During the February 10, 1977 status listing conference the only impediment to a trial listing before March 11, 1977 was the fact that appellee had voluntarily entered Eagleville Hospital and would be receiving treatment for the ensuing two months. ¹ The fact that the conference judge may have attempted to justify the delayed listing on the grounds of a recalculation of the period because of judicial delay is immaterial. ² Clearly the delay between March 11th and April 14th was directly attributable to the unavailability of the appellee and thus automatically excludable under section (d) of Rule 1100. ³ See, Com. v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Com. v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982); Com. v. Rodriquez, 291 Pa.Super. 239, 435 A.2d 888 (1981).

Moreover, to justify an order of discharge on a finding of original trial counsel's ineffective representation based upon his failure to object to the April 14th listing defies reason. As we have repeatedly stated, the hallmark of ineffective representation is that the challenged action cannot be found to have been designed to serve the client's best interests. Com. v. Davenport, 494 Pa. 532, 431 A.2d 982 (1981); Com. v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Com v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Com. v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Com. v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979) Com. v. Williams, 485 Pa. 137, 401 A.2d 331 (1979); Com. v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Com. v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Com. v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978); Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, we have made it clear that hindsight judgment must not be used in making that assessment. Com. v. Davenport, supra. Com. v. Musi, supra. Com. v. Hosack, supra. Com. v. Weathers El, supra. Com. v. Treftz, supra. Com. v. Williams, supra. Com. v. Chumley, supra. Com. v. Coleman, supra. Com. v. Sisco, supra. Com. ex rel. Washington v. Maroney, supra.

Whether or not counsel had the authority to waive appellee's rights under the factual setting here involved is not germaine to the question presented. It was at the behest of the defense that the trial was extended and as the majority properly notes it was reasonably designed to effectuate appellee's best interests. It is specious to now argue that because original trial counsel acted without authority and was successful in seeking a delay which was designed to serve the client's best interest, the fact that the action was without authority constitutes ineffectiveness. Such reasoning is tantamount to concluding that trial counsel was ineffective for creating a situation which requires the discharge of his client.

For the stated reasons, I concur in the mandate of the Court.

ZAPPALA, Justice, dissenting.

I dissent.

On September 12, 1976, a criminal Complaint was filed against John Guldin ("Guldin") charging him with arson and other related offenses. Thereafter on September...