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filed: February 15, 1985.


No. 882 Pittsburgh, 1982, Appeal from the Judgment of Sentence of July 23, 1982, Court of Common Pleas, Erie County, Criminal Division at Nos. 359 & 659 of 1980.


Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.

Tamilia, Johnson and Montgomery, JJ. Tamilia, J., files a dissenting opinion.

Author: Johnson

[ 340 Pa. Super. Page 306]

Appellant, Timothy Knupp, takes this appeal from his conviction on two charges of retail theft. In this appeal, appellant raises three issues: (1) whether appellant was denied his rights under Pa.R.Crim.P. 1100, (2) whether appellant was denied effective assistance of counsel in

[ 340 Pa. Super. Page 307]

    asserting his rights under Rule 1100, and (3) whether the lower court erred in permitting appellant's prior, uncounseled retail theft offenses to be considered for purposes of sentence enhancement. Because we find the Commonwealth's petition to extend to be untimely, we find appellant's first issue to have merit and we reverse and order appellant discharged. In view of our disposition of this issue, we need not address the two remaining issues.

The basis for the present appeal is appellant's arrest under two separate informations. The first of those informations, number 359 of 1980, charged appellant with stealing a woman's warm-up suit valued at $26.88 on December 24, 1979. The second information, number 659 of 1980, charged appellant with stealing two packages of batteries, valued at $3.06, on January 14, 1980. These informations were consolidated for trial.

On April 7, 1980, appellant applied for the Accelerated Rehabilitative Disposition (ARD) Program for both charges. In conjunction with this application, appellant, without benefit of counsel, signed a waiver of his rights under Pa.R.Crim.P. 1100. In a subsequent hearing, appellant testified that a secretary at the district attorney's office told appellant that he would receive a response regarding his ARD application "before summer was up." However, it was not until October 27, 1980, that appellant was informed by letter that he had not been accepted into the ARD program. The letter further stated that appellant's case would be scheduled for the November, 1980 trial term. Appellant, however, did not appear for trial and a bench warrant was issued on November 18, 1980. The bench warrant was lifted on December 15, 1980, after appellant called the D.A.'s office and informed them that he did not receive actual notice of the hearing because he was away attending college and his father, to whose house the notice was sent, did not relay the notice. Twenty-seven days elapsed between the issuance of the warrant and the lifting of it.

Trial was rescheduled for the January term of court. However, on January 16, 1981, counsel for appellant made a

[ 340 Pa. Super. Page 308]

    motion to strike the case from the trial list on the grounds that appellant had never been arraigned. Three days later, on January 19, 1981, the trial court dismissed appellant's motion as moot since the January term of criminal court had ended.

Thereafter, on January 30, 1981, the Commonwealth filed the herewithin petition for an extension of time. Joint hearings were held on the Commonwealth's petition in this case and several other, unrelated cases involving other defendants. At this hearing, evidence was introduced regarding the lack of judges to hear criminal cases in the January, 1981 term of court, which ran from January 12 through January 16.

Following the completion of hearing on the Commonwealth's petition to extend, the court, on March 9, 1981, granted the Commonwealth's petition. The duration of the extension is not specified by the court and the docket says only, "[t]he Commonwealth's Petitions for Extension of Time are granted." Appellant was ultimately tried on August 25, 1981 and, after a non-jury trial, was found guilty on both charges of retail theft.

Appellant now argues that the waiver of his Rule 1100 rights, which he executed in conjunction with his application for ARD, was not a voluntary and intelligent waiver because these rights were not explained to him at that time. Appellant testified that when he and his father went to the district attorney's office to inquire about appellant's applying for ARD, one of the secretaries there gave him an application and told him to fill it out.*fn1 Appellant, who did not then have counsel, later testified that no one at the district attorney's office explained Rule 1100 to him. Appellant further testified that he asked the secretary how long it would be before he heard anything regarding his application, and he was told that he should be hearing something "before summer was up." In fact, appellant was

[ 340 Pa. Super. Page 309]

    not notified of his rejection for ARD until October 27, 1980, or 203 days after he made the application.

The Commonwealth did not contest appellant's testimony on this point. Instead, the District Attorney testified that in 1980 his office "stopped the processing of all ARD's until a question was settled regarding the legality of certain fines that were being levied by the local courts against ARD defendants." The District Attorney added that "several hundred ARD's were held up for a substantial period of time until that legal question was resolved." As pertaining to appellant's application, the District Attorney stated that he "[couldn't] say the delay in this case is anything other than that."

Where an accused is brought to trial more than 180 days after the filing of a written complaint, the burden rests on the Commonwealth to prove that the time beyond the 180 day period was properly excluded from the run period by the timely filing of a petition to extend or by other exclusionary provisions of Rule 1100. Commonwealth v. Iancovetti, 298 Pa. Super. 441, 444 A.2d 1257 (1982). Additionally, it is well established that, while there are no formal requirements for a valid waiver of Rule 1100 rights, there must be an indication on the record that the waiver was the informed and voluntary decision of an accused. Commonwealth v. Carey, 313 Pa. Super. 20, 459 A.2d 389 (1983).

The waiver now at issue was set forth at the bottom of appellant's application form for ARD. This paragraph reads:

"I have been advised that I have a right to have my case tried within 180 days from the date of the Criminal Complaint, under Rule 1100 of the Pennsylvania Rules of Criminal Procedure. I hereby agree to waive this right from the date of this application until I complete the program. If this application is rejected, I agree to waive my 180 day trial rights from the date of this application until the completion of the term of Court next following the date of my notice of rejection. I also understand that

[ 340 Pa. Super. Page 310]

I have a right to be represented by an attorney. I fully understand the charges against me and hereby formally ...

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