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 ...