decided: June 22, 1972.
Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, M.C. 10-1971, No. 3805, in case of Commonwealth of Pennsylvania v. Maurice Bell.
Stephen Robert LaCheen, for appellant.
Richard D. Steel, 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Dissenting Opinion by Packel, J. Wright, P. J., and Watkins, J., join in the dissent.
[ 222 Pa. Super. Page 191]
Appellant, Maurice Bell, appeals from the order of extradition entered by Judge Jacob Kalish, of the Court of Common Pleas of Philadelphia, on January 28, 1972. The court below granted a supersedeas and continued appellant on bail pending the disposition of this appeal.
Pursuant to Section 13*fn1 of the Uniform Criminal
[ 222 Pa. Super. Page 192]
Extradition Act, Act of July 8, 1941, P. L. 288, §§ 1-32, 19 P.S. 191.1-.31, hereafter called the Act, appellant was arrested on November 2, 1971, and charged with being a fugitive from justice in Delaware on a charge of burglary. He was presented before a Municipal Court judge, who advised him of the purpose of his arrest and his right to counsel. He was then released on $1,000.00 bail pending the bringing of extradition proceedings. He appeared with counsel on December 3, 1971, January 6, and January 20, 1972; each time the matter was continued at the request of the Commonwealth in order to secure necessary warrants and affidavits from the state authorities. Finally, on January 28, the Commonwealth appeared with its evidence and documents. For the first time, it was disclosed that extradiction was being sought in connection with a burglary which had allegedly taken place on May 13, 1971. Appellant's counsel objected to the admission of the Commonwealth's
[ 222 Pa. Super. Page 193]
evidence at that time, and, indicating appellant's desire to contest the legality of his arrest, requested a reasonable opportunity to file for a writ of habeas corpus. Notwithstanding this request, and over counsel's continued objections, the court heard the Commonwealth's evidence and ordered extradition. This procedure was improper.
Section 10 of the Act directs that: "No person arrested upon such warrant*fn2 shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel, and, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the said agent of the demanding state." The rights and safeguards enumerated in this section should have been made available to this appellant despite the fact that he was originally subjected to the court's jurisdiction under a magistrate's warrant rather than under the Governor's warrant. Our Supreme Court has said that, although there need be no formal rearrest on a Governor's warrant once a prisoner is properly in custody under a magistrate's warrant, before an extradition may be effected,
[ 222 Pa. Super. Page 194]
the "essential particulars" of the Act must be complied with. Commonwealth ex rel. Osburn v. Haas, 439 Pa. 341, 268 A.2d 85 (1970). This language means that a prisoner must be afforded a full opportunity, within the limitations provided by the Act, to challenge his extradition, including the opportunity to file for and be heard on a petition for habeas corpus. It was only because the appellant had been afforded "the same privileges and protection he would have been entitled to under Section 10", including the opportunity to file for and be heard on a petition for a writ of habeas corpus after the issuance of the Governor's warrant that the Supreme Court decided in Commonwealth ex rel. Huey v. Dye, 373 Pa. 508, 96 A.2d 129 (1953), that it was immaterial whether appellant had been arrested pursuant to Section 14*fn3 or Section 10. Likewise, in Commonwealth ex rel. Osburn v. Haas, supra, the Supreme Court found that all the "essential particulars" of the Act had been complied with, thereby obviating the necessity for a formal rearrest, where the appellant had been afforded a full hearing on his petition for a writ of habeas corpus filed after the issuance of the Governor's warrant. We therefore conclude that a prisoner may not be denied the privileges of Section 10 by virtue of his having been arrested in accordance with Sections 13 or 14 of the Act.
Conformity to Section 10 required that once the appellant communicated his desire to contest his arrest, the court was bound to grant him a reasonable opportunity to file for a writ of habeas corpus. A person arrested under the authority of an extradition warrant has the remedy of habeas corpus as a means of challenging the legality of his arrest as a matter of right, not at the discretion of the judge presiding over the proceeding.
[ 222 Pa. Super. Page 195]
requirements of the Uniform Criminal Extradition Act have been satisfied before permitting one to be surrendered to the executive authority of the demanding state." (at 495) The statutory requirement that an arrestee be afforded an opportunity to file for a writ of habeas corpus is clear.*fn4 The failure to meet that requirement in this instance is equally obvious. The order is invalid.*fn5
The order of extradition is vacated, and the case is remanded to the court below to allow appellant to exercise his habeas corpus rights.
Order vacated, and case remanded.
Dissenting Opinion by Packel, J.:
Counsel for the defendant complains in this extradition case that he was entitled as a matter of right to a continuance in order to initiate habeas corpus proceedings.*fn1 Although § 10 of the Uniform Criminal Extradition
[ 222 Pa. Super. Page 197]
Act*fn2 provides for that right when the arrest is made upon the Governor's warrant, there is no such right provided for under § 13 of that Act when the arrest is on a complaint.
The Supreme Court has noted in Commonwealth ex rel. Huey v. Dye, 373 Pa. 508, 512, 96 A.2d 129, 131 (1953), that the proceedings on complaint and answer thereto serve the same purposes as the habeas corpus proceeding following arrest on the Governor's warrant.
The crowded courts should not be required to go through two proceedings when one suffices. Furthermore, witnesses frequently must travel from distant states and should not be required to make repeated appearances. Defendant's counsel had approximately three months to take appropriate steps if the complaint did not give sufficient information concerning the charges in the other state. He did not seek a continuance upon the grounds of surprise. Rather his complaint was that he had an absolute right to a continuance to initiate a habeas corpus proceeding. Neither the statute nor any reason of policy justifies such bifurcation of a judicial proceeding for extradition.
The order of extradition should be affirmed.