Commonwealth v. Laudenslager, 393 A.2d 745

Commonwealth v. Laudenslager

393 A.2d 745

Pa. Super. Ct.

1978

Check Treatment

*1 118 was waived appellant find that us to urge

Appellees failure instructions confusing challenge P. Our Pa.Rules of Civil trial. object at specifically however, appellant's reveals that record, of the examination court announced time the each excepted counsel 293a; 291a; verdicts, (N.T. potential on recharge jury as exceptions counsel's 304a; 311a). We construe 297a; and obfuscation repetition further to prevent attempts in this raised he has claim precise This is the issues. Co., Pa. 457 Trust Valley Lehigh Dilliplaine court. See (1974). A.2d 322 granted. new trial Order reversed the result. SPAETH, J., concurs in in the consideration J., participate did not case. decision of this A.2d 745 Appellant, Pennsylvania,

COMMONWEALTH Gary Eugene LAUDENSLAGER. Pennsylvania. Superior 12, 1978. Argued June 20, 1978. Decided Oct. principle. correct statement one is the ment and not the earlier cautionary instructions were No such Pa.Prac. 469. See 6 Standard charge. given in the instant *2 Banks, Robert F. First Assistant District Attorney, Wil- Commonwealth, liamsport, for appellant. Defender, Boyer,

David K. Assistant Public Williamsport, for appellee. JACOBS, Judge,

Before President and CER- CONE, PRICE, VOORT, HESTER, VAN der and SPAETH JJ. VOORT, Judge: der

VAN on No- was arrested Laudenslager Appellee Gary Eugene day, filed same 25, 1975, complaint to a pursuant vember Due to con- various offenses. drug was with charged and witness) concerning a defense (one by flicting reports substance, the the allegedly-illegal composition chemical application filed an Commonwealth, on May trial, re- simultaneously commencing time for extension of independent analysis lower court to order questing the explained problem The application substance. alleged diligence. and due Common- conflicting reports Request Continuance Form” wealth also filed a “Criminal making the same information containing essentially The latter form same for additional time. extension of attorney, agreeing signed by appellee’s the trial date. rule upon the lower court issued a

On May *3 not be the trial deadline should why to show cause appellee that service was to be made on The rule specified extended. mail. The rule also stated: ordinary appellee’s attorney by his are advised that attorney hereby “The defendant and shall also have the 1100(c), Rule the defendant pursuant to if he application the right upon to be heard Commonwealth’s extended, trial, unless would so The last for day desires.” 24, the lower 23, May have been 1976. On court May time and extended the the Commonwealth’s granted 14-25, 1976. for trial to June Quash himself filed a Motion to appellee On June September Indictment. was held on the motion on Hearing that he not 13, 1976, which time testified appellee at sometime in of attorney August his until by been informed time, given by for extension of of the consent application the grant lower court’s of extension. or of the attorney, of time The found that consent to the extension lower court himself, appellee from had not been solicited or obtained 468 Pa. 360 A.2d Myrick, on Commonwealth v. relying that written consent of (1976), the court below held at a appellee’s presence colloquy absent appellee’s attorney, consent, ineffective as a waiver of written appellee’s days. under Rule 1100 to trial within 180 appellee’s motion, the indict- granted appellee’s quashed The court The ment, discharged. and ordered appellee September from appeal took the Order the motion to granting quash. court, the lower our upon by the case relied Myrick, (written

Supreme requirements Court stated that the basic waiver, a valid making in-court for waiver of colloquy) various constitutional would be “instructive” in rights, any of the consideration claimed waiver of the validity of Rule the limitations established protections although Rule 1100 were not required by Constitution. Since the defendant had been for an on-the-rec- Myrick present ord and had also a statement colloquy signed consenting to time, the extension of Supreme Court course found a valid waiver. Supreme The Court did not rule that requirement formal of a statement consenting signed by the defendant, or an in-court with the defendant colloquy present, be for a valid waiver of required Rule 1100 court, e., issue which specific faces our i. wheth- er a defendant’s waive his client’s attorney may Rule 1100 rights, was not before the in Myrick. 1100(c) states:

“At time any prior expiration period trial, commencement of for the Common- wealth to the court for may apply an order extending time for commencement of trial. A of such copy applica- tion shall upon be served through defendant his attor- *4 if ney, any, and the defendant shall also have right the be heard thereon. Such shall be application granted only if trial cannot be prescribed commenced within the period due despite diligence the Commonwealth. order by Any granting application such shall the date or specify period within which trial shall be commenced.” The Commonwealth in the case before us complied with the provisions of this the expiration section. Prior to of the period for trial, commencement the attorney for the Commonwealth filed a for additional time in proper request disprove allegations by appellee’s order to either confirm or material not what the allegedly illegal that the showed it to be. As re- analysis initially Commonwealth’s rule, the was served on the quired by copy of the “through attorney.” provides defendant The rule that defendant shall have the to be heard on such time; however, us, in request for additional the case before an independent analysis extension of time for have resulted in a decision the Commonwealth ultimately to drop charges, (apparently and appellee’s attorney client) without consulting with his consented to the exten- justifiably sion time. The Commonwealth relied on consent of We find that the Common- appellee’s attorney. wealth and we complied requirements with attorney, given find that the written consent of as appellee’s mind, operated was with best interests in as a appellee’s waiver of Rule 1100 We therefore reverse appellee’s rights.1 court, the Order of the lower order to be charges reinstated, and remand the case for trial.

CERCONE, J., concurs in the result of this Opinion. HOFFMAN, J., in opinion. files a The decision dissenting this case was made to the retirement of J. prior SPAETH, J., JACOBS, files a in which dissenting opinion, joins. President Judge,

HOFFMAN, Judge, dissenting: Commonwealth, contends that the lower Appellant, 1100(f), court in to Rule discharging appellee pursuant erred Pa.R.Crim.P.; I and would Appendix. disagree 19 P.S. affirm the lower court. 25, 1975, a

The facts are November dispute: not On appellee alleging criminal was filed vari- complaint against Substance, ous violations of the Device and Drug, Controlled Lamonna, (1977), 1. Commonwealth v. 473 Pa. 373 A.2d 1355 implies clearly formally that had counsel for defendant consent independent ed to an extension of time for trial in order that an obtained, analysis drugs might running involved be of the days period would have been tolled for that of time. *5 5,1976, Cosmetic Act.1 On March appellee’s counsel request- aed continuance because of a time conflict caused by his involvement an unrelated case. The court granted a 12, 1976, continuance and set a new trial date. May On a requested continuance for the purpose of obtaining a third chemical analysis substances allegedly sold possessed by appellee.2 grant petition the commencement of delay trial beyond 180th day. The request was contained in a Criminal Continuance Request Form upon which appellee’s attorney noted assent. did not Appellee sign 14, the form. 1976, On May the Commonwealth filed an “Application for Extension of Time for Commencement of Trial and For Court Appointed Chemist.” In its application, the Commonwealth alleged that, despite its due diligence, it could not commence trial 23, 1976, before May the 180th day after the filing of the complaint. Further, it asserted that the delay stemmed from a in the discrepancy earlier chemical tests. Without conducting hearing, court, 14, 1976, lower on May granted an extension for the commencement of trial until thirty days after the of a receipt report from a chemist to be selected court to analyze the controlled substances. The court based grant its of the extension on the apparent agreement of the parties.

On June appellee filed a se pro “Motion to Quash Indictment” pursuant 1100(f). At a hearing on September 13, 1976, appellee testified that he did not autho- rize his to waive lawyer his Rule 1100 rights. He also claimed that he was unaware of both the Commonwealth’s request for an extension and the court’s grant of that request.

The lower court held that absent a recorded colloquy between appellee and the court or a written consent by appellee, the attempted waiver by appellee’s attorney appellee’s Rule 1100 rights was ineffective. Because the 14, 1972; 1. P.L. No. seq. eff. June § 35 P.S. 780-101 § et analyses Two earlier chemical conducted at prosecution yielded contrary defense and results. deadline for trial had passed, lower court discharged This followed. appellee. appeal *6 The Commonwealth contends that the lower court erred in that the time for trial could not holding be extended without consent. In v. appellee's Myrick, Commonwealth 468 Pa. 598, 155, 159, 600 (1976), 360 A.2d our Supreme Court held 1100, that "Rule like the right to a trial which it speedy waived." In protects, may be the formulating requirements rule, for the this waiver of the court to the analogized basic for a valid waiver requirements of constitutional rights: "So indication, long record, as there is on the that the waiver is the and voluntary defendant, informed decision of the will be facie prima accorded Absent validity. record the validity, indication of waiver will be ineffective. More over, merely these are formal indications validity. In any situation, waiver the defendant still may attempt prove to that the waiver is invalid by showing that it was unknowing, unintelligent involuntary." Commonwealth v. Myrick, 160, 468 at supra, Pa. 360 A.2d at 600. also: See Common Robinson, 665, wealth v. Pa. 468 364 A.2d 674 (1976). Because 1100 is to "designed implement and protect a defendant's right constitutional to a trial. speedy .,

. the basic for a requirements making valid waiver rights constitutional . . . are instructive in our consideration of the of a validity claimed waiver of the protection rule 1100. Thus a waiver which would be would, to waive a formally adequate constitutional a fortiori, be sufficient under the Federal Constitution waive protection of rule 1100." Commonwealth v. Myr ick, 161, supra, 468 Pa. at 360 A.2d at 600. In there Myrick, was an colloquy on-the-record and a statement signed by defendant and endorsed on the indictment indicating his to extend the time willingness for trial. Court conclud " ed that . . . claim that appellant Commonwealth's valid, waived the protection formally of rule 1100 is for either the or the statement colloquy signed by [itself] was, be sufficient record indication that the waiver prima facie, voluntary." informed and Commonwealth v. Myrick, supra 468 Pa. at 360 A.2d at 601. Lamonna, 473 373 A.2d 1355 Pa.

In Commonwealth held that Commonwealth (1977), our Supreme of Rule a valid waiver not established Lamonna, Attorney assigned prose District the Assistant extension of time for an agreement cute the case drafted an In a outside of a hallway of trial. the commencement raised the issue courtroom, Attorney Assistant District counsel. with defendant's proposed stipulation testimony,3 Assistant District According Attorney's "was to ask whether his client's opposing response counsel's signature might attention or whether his own necessary the two men." exchange do. There was no further between Lamonna, at 473 Pa. A.2d supra, " record at 1359. The Court concluded that . . . here that this defendant waived support finding does not *7 that, with Rule or his to protest non-compliance he can be said to have the conduct of his by attorney, within which he acquiesced period in an extension of the should be to trial under the rule." Commonwealth brought Lamonna, v. 473 Pa. at 373 A.2d at 1360. supra, and Myrick The instant case falls between Lamonna. unequivocal Unlike in which there was an indication Myrick 1100 at rights, of a defendant’s waiver of his Rule the case consented individually bar contains no evidence that appellee Lamonna, In rights. to a waiver of his Rule 1100 contrast to the instant case contains a clear manifestation of the assent to a waiver of Rule 1100 appellee’s attorney appellee’s rights. attorney The actions of the defendant’s Lamonna result, were a was equivocal Supreme at best. As Court to that the unwilling attorney’s acquiescence conclude be with Rule 1100.4 non-compliance taken as consent to Lamonna,

In and I would hold that it is reconciling Myrick to waive ability the individual defendant who has the only individual, however, his Rule 1100 The can waive his rights. Attorney hearing 3. The Assistant District testified at a on the defend- 1100(f) application charges. ant’s Rule dismiss the to Lamonna, supra, Supreme 4. In conclud- Commonwealth that, attorney presented, ed on the facts the defendant’s had not non-compliance consented did not to with Rule The Court of his Just through attorney. Rule the conduct rights individual must be “an a of Rule 1100 an as waiver decision,” that in order I would hold voluntary informed and behalf, on a client’s waive those attorney rights for to the attorney on-the-record indication that there must be an the nature and consequences and client discussed as- knowingly voluntarily the client and decision and that of action.5 attorney’s sented to the course case, a attorney Criminal appellee’s signed the instant agreeing postponement Continuance Form Request expira- trial beyond the time for commencement of hearing tion of the Rule At no time before the period. the lower court appellee’s 1100(f) application on Rule did of, authorized, knew his inquire appellee into whether 1100(f) appellee’s At the on Rule attorney’s hearing actions. he unaware of his testified that was application, appellee con- and that the Court had attorney’s granted actions accepted as true. testimony tinuance. lower court result, indication that As there no on-the-record had the nature and appellee and his discussed consequences of the decision waive Rule 1100 appellee’s knowingly voluntarily that had and rights appellee attorney’s course of action. assented to evidence, I hold did not make appellee On this that his Rule 1100 voluntary “an informed and decision” waive Myrick, supra. the at- Because 1100 deadline tempted waiver was ineffective and trial I would affirm expired, commencement for *8 discharging appellee. the lower court’s order prior The decision in this was made retirement case J. decide whether and under what circumstances waive a client’s Rule 1100 Shaffer, dissenting opinion In a Pa. 5. (1977), 380 A.2d 341 Justice ROBERTS noted that certain decisions personal responsibility are are the the accused and others depends upon exercise counsel. order to waive a whose decision, require ROBERTS a know defendant's own Justice ing intelligent right. abandonment of that SPAETH, Judge, dissenting: join I Judge HOFFMAN’s dissenting opinion except in one respect. Instead of ordering appellee discharged, I should remand for a hearing on the Commonwealth’s petition for extension. If after that hearing were determined that the Commonwealth had exercised due diligence, judgment sentence would be reinstated.

JACOBS, joins President Judge, in this dissenting opinion.

393 A.2d 750 Pennsylvania, Appellee, COMMONWEALTH of VAREEN, Appellant. Levance Superior Pennsylvania. Court of

Submitted June 1977. Decided Oct.