Commonwealth v. Daniels ( 1981 )

SPAETH, Judge,

concurring:

As Judge JOHNSON’S opinion makes plain, the appellant did not himself waive his Rule 1100 rights; his attorney assumed to do that for him, without consulting him.

In Commonwealth v. Laudenslager, 259 Pa.Super. 118, 393 A.2d 745 (1978), Judge HOFFMAN expressed the opinion that

in order for an attorney to waive those rights, [i. e., a defendant’s rights under Rule 1100] on a client’s behalf, there must be an on-the-record indication that the attorney and client discussed the nature and consequences of the decision and that the client knowingly and voluntarily assented to the attorney’s course of action.

Id., 259 Pa.Super. at 126, 393 A.2d at 749 (footnote omitted.)

This opinion, however, did not command a majority, since only President Judge JACOBS and I joined it (although we would have remanded for hearing instead of ordering a discharge). In the opinion of the majority,

the written consent of appellee’s [the defendant’s] attorney, given as it was with appellee’s best interests in mind, operated as a waiver of appellee’s Rule 1100 rights.

Id., 259 Pa.Super. at 122, 393 A.2d at 747 (footnote omitted).

In Commonwealth v. Tami, 264 Pa.Super. 535, 400 A.2d 214 (1979), the defendants had no notice of the Commonwealth’s petition for an extension. Nevertheless, we held:

Appellants’ [the defendants’] argument that their counsel’s waiver of Rule 1100 was improper is clearly without merit .... No hearing is necessary to show that he had the best interest of his clients in mind when he sought or agreed to a continuance so that his motion to dismiss could be argued before trial and at a time he would be available. Commonwealth v. Laudenslager, 259 Pa.Super. 118, 393 A.2d 745 (1978), presented a similar situation.

Id., 264 Pa.Super. at 538, 400 A.2d at 216.

Judge JACOBS and Judge HOFFMAN did not participate in this decision. I did, but I did not dissent, for it seemed to me that by then Laudenslager had become the law.

I therefore conclude, as does Judge JOHNSON, that in the present case counsel may not be held ineffective on the sole ground that he failed to obtain appellant’s knowing and voluntary waiver of his Rule 1100 rights. See Commonwealth v. Nagel, 246 Pa.Super. 576, 371 A.2d 983 (1977).