Appeal from the Order entered July 30, 1976, of the Court of Common Pleas, CRIMINAL, for the County of DAUPHIN, at No. 1179 C.D. 1973.
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 248 Pa. Super. Page 48]
In a petition filed pursuant to the Post Conviction Hearing Act,*fn1 appellant contended that his March 10, 1976 guilty pleas was not knowing, intelligent and voluntary because he did not realize that he was waiving his right to a speedy trial. Appellant now challenges the lower court's dismissal of his petition without a hearing.*fn2 Because we cannot determine the merits of appellant's claim without an evidentiary hearing, we remand the case to the lower court.
On March 26, 1973, Kenneth Marut, a Pennsylvania Bureau of Drug Control agent, executed a criminal complaint charging appellant with selling five packets of heroin to a police undercover agent in Dauphin County for $40.00. On August 21, 1973, the Dauphin County Court of Common Pleas entered an order directing the sheriff to secure appellant's release from York County Prison for arraignment on an indictment charging one count of unlawful delivery of a controlled substance.*fn3 Appellant appeared for arraignment on August 24, 1973, and was returned to York County to face trial on charges there. On September 13, 1973, appellant posted bond in York County; because York County officials had no record of a detainer lodged by Dauphin County officials, appellant was released. The Dauphin County Court of Common Pleas scheduled October 16, 1973, as appellant's trial date. When the district attorney discovered
[ 248 Pa. Super. Page 49]
that appellant was not in York County Prison, he sent a written notice to appellant's last known address, which was returned marked "Addressee Unknown."
Appellant alleges that he returned to Dauphin County when the pending criminal charges in York County were nolle prossed and sought information from the Dauphin County court officials regarding the disposition of the narcotics charge. Appellant claims that he was told that the charges had been dismissed. He further alleges that the authorities knew of his whereabouts at all times prior to his re-arrest and that, in fact, during this period, he frequently saw one of the police officers who ultimately would have been called to testify on behalf of the Commonwealth.
On January 15, 1976, Harrisburg Police officers arrested appellant for simple assault,*fn4 and the district attorney lodged a capias against him on the 1973 narcotics charge. On January 21, 1976, appellant filed a pro se petition for a writ of habeas corpus alleging, inter alia, that he had been denied his right to speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. Citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).*fn5 The lower court made no formal disposition of the petition prior to appellant's appearance for trial.
On March 10, 1976, appellant's counsel, a Dauphin County public defender, announced that appellant wished to change his plea and waive a jury trial. The public defender then interrogated appellant to demonstrate that he understood the charge and the factual basis underlying it, that he understand the protections of a trial by ...