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decided: September 21, 1971.


Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1963, Nos. 633 to 635, inclusive, in case of Commonwealth of Pennsylvania v. Jessie Scott.


Harold Yaskin, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Harold K. Don, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J.

Author: Jacobs

[ 219 Pa. Super. Page 472]

Appellant was found guilty, on July 13, 1971, of aggravated robbery, aggravated assault and battery, and carrying a concealed deadly weapon; he was later sentenced. Prior to trial, the lower court refused to grant appellant's petition to dismiss the indictments upon which the above charges were founded. Appellant's sole contention in this appeal is that the petition to dismiss should have been granted because the Commonwealth violated the terms of the "Agreement on Detainers", Act of September 8, 1959, P. L. 829, 19 P.S. §§ 1431-38 [hereinafter referred to as "Agreement"].

The Agreement provides, inter alia, that a person who is imprisoned in a penal institution of a state which is a party to the agreement may request that a final disposition be made of any indictment against him upon which a detainer has been lodged by another party state. 19 P.S. § 1431, Art. III(a). If such a request is made, the state by which the detainer is lodged must bring the prisoner who requested disposition to trial within 180 days, subject to the provision that, for good cause, a court having jurisdiction over the matter may grant any necessary or reasonable continuance. Id. If the prisoner is not brought to trial within the 180-day period, the pending indictment must be dismissed, with prejudice, and any detainer based thereon ceases to be of any force. 19 P.S. § 1431, Art. V(c). The running of the 180-day period is tolled whenever and for as long as the prisoner is unable to stand trial. 19 P.S. § 1431, Art. VI(a). Finally, no provision of the Agreement, and no remedy made available by the Agreement, applies to any person who is adjudged to be mentally ill. 19 P.S. § 1431, Art. VI(b).

[ 219 Pa. Super. Page 473]

Appellant was arrested and indicted, in 1963, for charges arising out of the robbery of a loan company located in Philadelphia. At the same time he was indicted for the robbery of a loan company in Delaware County. He pleaded guilty to the Delaware County charge and was committed to a state hospital for psychiatric studies. In 1964, while still undergoing hospitalization and prior to disposition of charges pending against him in Philadelphia, appellant escaped and went to New York. While in New York he was arrested, and in 1966 was found guilty of robbery and received a 3 1/2- to 7-year prison sentence.

While serving this sentence in a New York State prison, appellant filed a request for a final disposition of the Philadelphia indictments pursuant to the Agreement.*fn1 Appellant was thereupon returned to Pennsylvania. He was received by Philadelphia prison authorities on December 13, 1968, and his trial was scheduled for December 30, 1968; however, the case was continued until February 1969 because defense counsel was not ready for trial at the time of the first listing.

On January 29, 1969, defense counsel made an application for an independent psychiatric examination of appellant. This application was not granted, but the court directed neuro-psychiatric studies by its own psychiatric division. Pursuant to this order, appellant was examined by two physicians who found the appellant mentally ill. On March 20, 1969, upon receipt of the report, the court found appellant mentally ill and committed him to the State Maximum Security Forensic Diagnostic Hospital at Holmesburg Prison for a period not to exceed 60 days. This commitment was made pursuant to section 408 of the Mental Health and Retardation Act of 1966, Act of October 20, 1966, Spec. Sess. No. 3, P. L. 96, 50 P.S. § 4408.

[ 219 Pa. Super. Page 474]

On June 23, 1969, a psychiatric evaluation was submitted to the lower court by the hospital at Holmesburg finding appellant to be in a precarious pre-schizophrenic state, at present requiring medication. It further recommended "that the patient be given an opportunity to proceed with trial as quickly as possible if he shows the ability to cooperate with counsel in the preparation of his defense." No action was taken on this report*fn2 and, except for a defense request for a bill of particulars, filed on July 8, 1969, no further action was taken on the case. On December 30, 1969, the motion to dismiss the indictments was filed contending ...

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