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decided: March 24, 1972.


Appeal from order of Court of Common Pleas of Somerset County, Nov. T., 1969, No. 48, in case of Commonwealth of Pennsylvania v. David Wagner.


James B. Yelovich, Public Defender, for appellant.

Alexander Ogle, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J.

Author: Cercone

[ 221 Pa. Super. Page 52]

This appeal involves the right of a federal prisoner to a speedy trial on untried state charges pending against him. The facts show that on February 2, 1970, the Grand Jury of Somerset County approved an indictment against the appellant, David Wagner, for the crime of larceny, arising out of the theft of a motor vehicle in late 1969. Trial was scheduled on this charge for February 24, 1970, but before this date appellant breached his bond and fled to Alabama. He was picked up in that state as a federal parole violator and subsequently returned to Pennsylvania on April 1, 1970 for incarceration in the United States Penitentiary at Lewisburg. On the date of his return to this state, the Somerset County District Attorney filed process with the federal penitentiary to serve as a detainer.

The appellant, under date of April 17, 1970, wrote letters to the District Attorney and the court in Somerset County asking that the larceny charge then pending against him be dropped and the detainer quashed or, in the alternative, that he be given speedy trial on the charge. The District Attorney responded on May 5, 1970 and advised Wagner that the charges would not be dropped and that he did not intend to bring the

[ 221 Pa. Super. Page 53]

    case to trial until after the appellant's scheduled release from the penitentiary in 1971. The District Attorney informed appellant to consult his court-appointed attorney or the warden concerning the correct procedure to be followed. On May 27, 1970 Wagner filed a motion for speedy trial and the lower court, on June 1, 1970, entered an order directing that the case be listed for trial at the September Term, 1970, that being the next term of court. The September Term jury trials commenced in Somerset County October 13, 1970 and concluded about October 27, 1970.

On October 26, 1970, Wagner came before the court on the larceny charge. At this time, his counsel orally moved to quash the indictment on the ground that there had been a denial of the right to a speedy trial. Wagner argued below, as he argues in our court, that the delay in bringing him to trial required a reversal under the Act of June 28, 1957, P. L. 428 (19 P.S. § 881 et seq.), our so-called "180-day rule". This rule requires the trial of untried indictments against prisoners within 180 days after proper request for such disposition is made by the prisoner involved. The record shows that trial was not held in the instant case until 192 days after Wagner first wrote to the court and District Attorney requesting to be tried on the indictment then outstanding. The lower court denied his motion and Wagner was told he would be afforded a jury trial the next day. Wagner decided to plead guilty to the charge, but specifically reserved the right to appeal on the speedy trial issue.

In analyzing this appeal, we must initially look to the Act of June 28, 1957 to determine whether it applies to the instant fact situation. An examination of the Act reveals that it does not. In Section 1(a) of the Act (19 P.S. § 881) the first sentence provides: "Whenever any person has entered upon any term of

[ 221 Pa. Super. Page 54]

    imprisonment in any state, county, or municipal penal or correctional institution of this Commonwealth. . . ". [emphasis supplied] The appellant was an inmate of a federal correctional institution, and under the express language of the statute, was ineligible to proceed under its provisions. Furthermore, the Act clearly details the procedure an applicant must follow in submitting the request for disposition of untried indictments. Explained simply, the prisoner must submit his request through the warden, superintendent or other corrections authority having custody over him. Such official must then forward this request, accompanied by other documents, as specified in the Act, to the proper local District Attorney and court. Such procedure was not followed by appellant herein; he merely sent informal letters directly to the court and District Attorney stating his request. Even if he were eligible to seek the application of the Act, appellant could not ignore the procedure required. Cf. Commonwealth v. Williams, 10 Lebanon 420 (1965) and Commonwealth v. Udelson, 10 Chester 541 (1961).

Next, although the appellant has not raised any argument based upon the Act of September 8, 1959, P. L. 829, 19 P.S. 1431 et seq. (Agreement on Detainers), a full examination of his right to speedy trial requires reference to that statute. The pertinent provision of that statute reads as follows: "Article 3. (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against a prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate

[ 221 Pa. Super. Page 55]

    court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . ". This section is analogous to Section 881; however 1431 applies to inmates held in other jurisdictions. Section 1431 requires that the incarcerating jurisdiction have a complementary statute before the section can become applicable. Commonwealth v. Bressler, 194 Pa. Superior Ct. 208, 166 A.2d 549 (1960), cert. denied, 366 U.S. 932, 81 S. Ct. 1655. At the time of the appellant's request for trial, the federal government did not have such a statute.*fn1 Appellant argues that to draw a distinction between inmates imprisoned in Pennsylvania and jurisdictions having complementary legislation and those imprisoned in noncomplementary legislation jurisdictions is violative of the equal protection guarantee of the Fourteenth Amendment. Though we acknowledge that the decision in Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971), is not a precedent for the application of the rule of stare decisis, having been participated in by two justices (with a third concurring), we nevertheless do agree with the reasoning therein set forth by Justice Eagen relative to the issue here involved: "The salient point of this argument is that despite the fact that the United States has not signed this interstate compact, the equal protection clause of the ...

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