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decided: September 19, 1973.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, No. 72-08-0309, and Sept. T., 1972, No. 72-08-250, in case of Commonwealth ex rel. William Douglass v. Louis Aytch, Superintendent, Philadelphia County Prisons.


Steven G. Farber, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Peter J. Smith, Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Spaeth, J. Jacobs and Spaulding, JJ., join in this concurring opinion.

Author: Hoffman

[ 225 Pa. Super. Page 196]

This appeal involves the question of whether a dismissal "with prejudice" of Governor's Warrants in an extradition proceeding bars a subsequent rearrest and hearing on the same fugitive charges.

[ 225 Pa. Super. Page 197]

On February 4, 1972, a warrant was lodged against the appellant, charging him with being a fugitive from justice from New Jersey. On March 3, March 29 and April 19, scheduled hearings were continued at the request of the Commonwealth due to the absence of Governor's Warrants. On April 26 and May 1, 1972, the extradition hearing was again continued because appellant failed to appear. A habeas corpus petition was filed on behalf of the appellant alleging various grounds for his discharge and the dismissal of proceedings. Finally, on May 23, 1972, the extradition hearing was listed before the Honorable Norman Jenkins, sitting in the Miscellaneous Court of the Common Pleas of Philadelphia. As of that date, 109 days had lapsed since the fugitive charge was lodged against the appellant. When the case was called before Judge Jenkins, the assistant district attorney stated that since the statutory ninety-day period had passed, appellant could no longer be held on the fugitive charge. The Court agreed and discharged the appellant. The order of discharge, however, read as follows: "Defendant discharged with prejudice. 90-day period has expired. Defendant has been in custody from 4-4-72 until today (May 25, 1972). Commonwealth v. William Douglas, MC. 72-01-3890." There was no appeal from that order by the Commonwealth. Instead, the Commonwealth notified New Jersey authorities that appellant was serving a sentence in Pennsylvania on local charges and that detainers should be filed if extradition was desired.

On July 31, 1972, appellant was paroled but was not released, for local authorities intended to surrender him immediately to the State of New Jersey on its new detainer. A hearing before the Honorable Levy Anderson was held on a Petition for Writ of Habeas Corpus on August 7, 1972. Judge Anderson ruled that under the facts of appellant's case, the Interstate Agreement on Detainers (19 P.S. § 1431 et seq.) was inapplicable

[ 225 Pa. Super. Page 198]

    since appellant was no longer serving a term of imprisonment in a penal institution. Thereupon, Judge Anderson granted the Writ and ordered "Defendant released from custody, forthwith."

Immediately after the hearing, appellant was arrested on Governor's Warrants, in accordance with the Uniform Criminal Extradition Act (19 P.S. § 191.7-.9). Appellant was taken into custody and received a preliminary arraignment on August 8, 1972. A Petition for habeas corpus was filed, alleging that the prior Order by Jenkins, J., discharging the defendant with prejudice, acted to prevent a subsequent rearrest and extradition proceeding on the same charges; he alleged that such a rearrest violated the double jeopardy provisions of the Constitution and was barred by the principle of res judicata. A full hearing on the merits was held on August 23, 1972, before Judge Anderson. After hearing the evidence, Judge Anderson, refused appellant's habeas corpus petition and ordered appellant extradited to New Jersey. A petition for supersedeas was taken to this Court from that Order, and a stay was granted pending appeal.

Appellant does not question the sufficiency of the evidence presented by the Commonwealth to extradite.*fn1 Appellant only raises the question of whether Judge Anderson acted improperly in denying appellant's petition, ...

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