Commonwealth v. Coleman

• Decision Date: 23 March 1978
• Citation: 383 A.2d 1268,477 Pa. 400
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joshua COLEMAN.
• Court: Pennsylvania Supreme Court

383 A.2d 1268

477 Pa. 400

COMMONWEALTH of Pennsylvania, Appellant, v. Joshua COLEMAN.

Supreme Court of Pennsylvania.

March 23, 1978

Argued Nov. 18, 1977.

William T. Nicholas, Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., Eric J. Cox, Asst. Dist. Atty., for appellant.

Calvin S. Drayer, Jr., Asst. Public Defender, Chief, Appeals Div Geo. B. Ditter, for appellee.

Before EAGEN C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

This appeal by the Commonwealth is from an order of the Superior Court which reversed the judgment of sentence and ordered that Joshua Coleman, appellee, be discharged pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure.

On September 24, 1974, Coleman was charged with burglary and theft. Prior to trial and the running of the 180-day period, the Commonwealth filed a petition for extension of time pursuant to Pa.R.Crim.P. 1100(c). After a hearing and argument on the matter, the court below granted the Commonwealth's petition. On April 22, 1975, a date within the extended time appellee was tried by a judge and jury and was convicted of burglary. Post-verdict motions were denied, and appellee was sentenced to a prison term of six to twelve years.

Appellee then appealed to the Superior Court, alleging that the court below erred in granting the Commonwealth's petition for extension of time. Further, appellee argued that since the case was not tried within the 180-day period called for in the rule, he was entitled to a discharge. The Superior Court agreed with appellee, and on June 30, 1976, the court ordered that appellee be discharged. Commonwealth v. Coleman, 241 Pa.Super. 450, 361 A.2d 870 (1976). The Commonwealth filed a petition for allowance of appeal, which we granted.

The Commonwealth argues that the Superior Court erred in discharging appellee. The facts are as follows. A criminal complaint charging appellee with burglary and theft was issued on September 24, 1974. The case was listed for trial on January 27, 1975. While the Commonwealth was prepared to proceed, appellee requested a continuance, which the court granted for an unspecified period of time. The case was rescheduled in accordance with the normal Montgomery County procedure, which the trial court described as follows:

". . . Since calendar control is under the direct supervision and control of the Board of Judges of this County, we may take judicial notice of the manner in which our Court Administrator, under our direction, schedules criminal matters. The next criminal session scheduled after the session during which the continuance was granted commenced February 24, 1975, and was a 3 week session. The next succeeding criminal session commenced April 14, 1975, also a 3 week session. Taking into consideration the availability of judicial personnel, the Court sets the number of cases to be listed for each three week segment of criminal court. The Court administrator then schedules specific cases at least 30 days prior to the first date of the criminal session, so that attorneys have ample notice, and sufficient time is allowed for subpoenaing witnesses. As a practical matter, it is thus not possible to superimpose upon an already prepared list, those cases which are continued from a current list. Instead, as happened here, continued cases are scheduled for the second session thereafter. . . ."

As the original 180-day period was up on March 24, 1975, and appellee's trial was listed for April 22, 1975, the Commonwealth, on March 12, petitioned for and received an extension of time until April 28, 1975.

After conviction, Coleman filed post-verdict motions alleging, inter alia, that the court erred in granting the Commonwealth's petition for extension of time. The trial court did not specifically answer this question; rather, the court held that the entire delay between January 27, 1975 and April 22, 1975, was caused by appellee's requested continuance. After subtracting thirty days, as required by Pa.R.Crim.P. 1100(d)(2), the court found 55 days of delay attributable to appellee and thus held that appellee was tried within the required time.

The Superior Court reversed. After rejecting the trial court's finding that 55 days of the delay were attributable to appellee, the Superior Court stated:

". . . It was the duty of the Court Administrator of Montgomery County, under the supervision of the Board of Judges, to schedule appellant's trial within the period prescribed by Rule 1100. If the trial could not be scheduled within the period because of the manner in which Montgomery County provides sessions for criminal trials, it was incumbent upon Montgomery County to change its procedure. To hold otherwise would emasculate the Rule. Therefore, the period between the date the continuance was granted and the date the trial commenced cannot be charged against appellant." Commonwealth v. Coleman, supra, at 454, 361 A.2d at 872.

The Commonwealth first argues that the trial court was correct in attributing 55 days of the delay to appellee. Pa.R.Crim.P. 1100(d) provides:

"In 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. . . ."

A continuance, with no date specified for trial, was granted on January 27 at appellee's request. Because of Montgomery County's scheduling problems, the case was listed for April 22. The Commonwealth would urge us to adopt the view that appellee must be held responsible for 55 days in the 85-day delay. This we are unwilling to do.

As Judge Hoffman, speaking for the Superior Court majority in Commonwealth v. Coleman, supra, at 454-55, n. 1, 361 A.2d at 873, stated:

"The Rule 1100 problem created in the instant case could also have been avoided by the expedient of granting a continuance for a specified period of time. If a continuance is granted for an indefinite period, as in the instant case, it is impossible to tell whether it is for thirty days or for more than thirty days. The court's failure to specify a date certain, however, cannot operate to deprive appellant of his Rule 1100 rights. It is just as likely as not that appellant wanted a continuance for no more than thirty days. The additional delay of 55 days resulted from the scheduling procedure employed by the Court Administrator.

"Furthermore, specific continuances would facilitate determination of possible Rule 1100 violations, and would operate as an additional stimulus to the Court Administrator to schedule trials within the period mandated by the Rule. Matters could be greatly simplified if defense counsel would request and trial courts would grant continuances for a definite period. It is clear that a defendant waives Rule 1100 violation by agreeing to a trial date beyond the period. See Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975)." (Emphasis added.)

We agree with Judge Hoffman's position, and in the future we will require that continuances be granted for a specified time to put an end to this troublesome problem.

The Commonwealth argues that refusing to adopt the trial court's position would force all prosecutors to challenge any defense requests for a continuance. By requiring trial courts to set a specified time for any continuance, however, the Commonwealth will be able to accurately compute the time as required by Rule 1100.

The Commonwealth next argues that Coleman has, for two reasons, waived the right to assert his Rule 1100 claim. When appellee requested and received his January 27 continuance, 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."

We believe, however, that the form signed by appellee has no legal significance regarding an alleged waiver of Rule 1100 rights.

In Commonwealth v. Mamon, 449 Pa. 249, 256, 297 A.2d 471, 475, (1972), we stated: "Merely signing a consent form prepared prior to interrogation will not usually suffice to prove a valid waiver." While Mamon was concerned with Fourth and Fifth Amendment Rights, we believe the same principal is applicable in the instant case. Regarding any rights guaranteed by either the United States Constitution or the Pennsylvania Constitution, for a waiver of those rights to be valid, the Commonwealth must prove by a preponderance of the evidence that the alleged waiver was intelligently made. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before finding a valid waiver, we must be convinced that an accused knows the nature of the constitutional rights involved. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). The form signed by appellee offers no explanation of what the right to speedy trial involves and we thus refuse to find a waiver on the basis of this form. ^[1]

The Commonwealth also urges us to find a waiver because appellee never filed a motion to dismiss the indictment. Pa.R.Crim.P. 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...