Appeal from the Order of The Superior Court of Pennsylvania, entered February 15, 1985 at No. 882 Pittsburgh, 1982 reversing the judgment of sentence entered July 23, 1982 in the Court of Common Pleas of Erie County, Criminal Division, at Nos. 359 and 659 of 1980.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., concur in the result. McDermott, J., filed a concurring and dissenting opinion.
The issue presented in this case is whether a Rule 1100 waiver form, executed by a defendant (Knupp-appellee) which waived his right to be tried within 180 days under Pennsylvania Rule of Criminal Procedure 1100*fn1 (Rule 1100) was a knowing, voluntary and intelligent waiver where the statement was executed without the advice of counsel and where it failed to inform appellee that the charges against him could be dismissed if trial did not begin within 180 days from the date of the written complaint.
On December 27, 1979 and February 4, 1980, two criminal complaints were issued, each charging appellee with retail theft. These charges constituted felonies of the third degree as they would be, if proven, appellee's third and fourth offense, respectively, for retail theft.*fn2 The 180 day "run dates" for these offenses, pursuant to Rule 1100, were June 24 and August 2, 1980.
On April 7, 1980, appellee, a third semester college student, went to the District Attorney's Office in Erie County, and received an application, from a secretary in the office, for the Accelerated Rehabilitative Disposition program (A.R.D.).*fn3 Appellee, who was accompanied by his father, then completed the application (encompassing both charges filed against him), while in the lobby of the District Attorney's office.
At the end of the form, prior to the signature line, was the following statement:
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 right 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 I have a right to be represented by an attorney. I fully understand the charges against me and hereby formally waive any additional arraignment.
Appellee signed the application without seeking assistance from anyone in the District Attorney's Office or from any attorney. He then immediately returned the application to the secretary and asked her when he would know anything about the application. Appellee alleges the secretary told him he would know "before the end of summer." Appellee returned to college in the Fall of 1980, without receiving any notification as to the status or disposition of his A.R.D. application. Appellee made no inquiries or attempts to determine the status of his A.R.D. application prior to returning to college.
By letter dated October 27, 1980, appellee was notified that his A.R.D. application had been rejected. The letter informed appellee that because the outstanding charges constituted his third and fourth offenses and were therefore felonies, he did not qualify for A.R.D. The letter further informed appellee that his trial would be scheduled for the November trial term, which was the next term of court.*fn4
Appellee failed to appear for his November 18, 1980 trial and on that day a bench warrant was issued. A motion to lift the bench warrant was filed by appellee's counsel alleging lack of notice and on December 15, 1980, the bench warrant was lifted. Trial was then rescheduled for the January, 1981 term of court.
A plea to the charges was scheduled for January 14, 1981. Appellee's counsel, on that day, had become aware for the first time that the charges were felonies and decided that appellee ...