decided: March 27, 1973.
COMMONWEALTH EX REL. KNOWLES
Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, No. 277, in case of Commonwealth ex rel. Thomas Knowles v. David J. Lester, Director Philadelphia Court Bail Project.
James Garrett, Assistant District Attorney, with him Martin H. Belsky, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellant.
Robert Stein, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Watkins, J., dissents.
[ 223 Pa. Super. Page 520]
The Commonwealth appeals contending that the lower court erred in granting appellee's petition for a writ of habeas corpus. The trial judge ordered appellee's
[ 223 Pa. Super. Page 521]
release from prison because he had been detained for more than ninety days following his arrest without being presented before a court as the Uniform Criminal Extradition Act*fn1 requires.
On December 8, 1971, the appellee was arrested and charged with receiving stolen goods and bringing stolen property into the state. On the same day, a warrant was issued charging him with being a fugitive from justice for violating conditions of his parole in Florida. A second fugitive warrant was issued on January 6, 1972. These warrants served as a detainer against the appellee who was then incarcerated on the local charges. On April 28, 1972, the detainer warrant was executed and the appellee charged with being a fugitive. The Commonwealth dropped the local charges on May 4, 1972. Eight days later, a preliminary hearing was held on the fugitive charge; bail of $5000 was set. A hearing before the motions court on the fugitive charges was continued, however, because the Florida authorities were not present. On May 19, 1972, this hearing was
[ 223 Pa. Super. Page 522]
again postponed to give the appellee time to retain private counsel and to file a petition for a writ of habeas corpus. On that day, he posted bail and was released. The petition was subsequently filed and the writ was granted on June 21, 1972. The lower court judge issued the writ on the basis of the fact that more than ninety days elapsed between the filing of the detainer and the preliminary hearing on the fugitive charges.
The ninety day period did not begin to run when the detainer was filed against the appellee. Such a time period only began to run when the appellee was brought before the court on April 28th. Commonwealth ex rel. Johnson v. Johnson, 221 Pa. Superior Ct. 304, 292 A.2d 456 (1972) (Where an individual was serving a prison sentence for a prior conviction, the detainer filed by another state did not start the 90 day period; the period began to run when his parole plan was approved.) The instant case is clearly distinguishable from Commonwealth v. McCaine, supra, where this court released an appellant who was held without a hearing for sixty-three days. In McCaine, the sixty-three day period came after the local charges were dropped. Appellee herein, however, was brought before the court before the local charges against him were dropped.*fn2
Thus, the lower court issuance of a writ of habeas corpus is reversed and the cause remanded for further action under the Uniform Criminal Extradition Act.