Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, No. 74-08-0012, in case of Commonwealth of Pennsylvania ex rel. James Coffman v. Louis Aytch, Superintendent Philadelphia County Prisons.
David Dessen, Leonard Sosnov, and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.
Mark C. Stephenson, James A. Shellenberger, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Van der Voort, J. Cercone and Price, JJ., join in this dissenting opinion.
[ 238 Pa. Super. Page 586]
On November 4, 1974, appellant James Coffman's petition for Writ of Habeas Corpus was denied by the court below and he was ordered extradited. This appeal followed.
Because the instant case is controlled by our Supreme Court's decision in Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974) and our decisions in Commonwealth ex rel. Goodroe v. Roth, 230 Pa. Superior Ct. 70, 326 A.2d 886 (1974) and Commonwealth v. Woods, 229 Pa. Superior Ct. 473, 326 A.2d 626 (1974), we reverse the order of the court below denying appellant's petition for Writ of Habeas Corpus.
Appellant was incarcerated in Philadelphia County Prison on November 11, 1973 on a local charge of receiving stolen property. Five fugitive detainers were thereafter lodged against appellant.*fn1 On November 29, 1973, the local charges were dismissed and appellant's commitment was apparently continued on the basis of the fugitive detainers. On August 19, 1974, over nine months later, appellant was arraigned on three of the five charges and bail was set on each. On the same date appellant filed the first of two Habeas Corpus petitions, claiming that the nine month delay during which no Governor's Warrant was produced and no arraignment held violated the Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, §§ 15 and 17, 19 P.S. §§ 191.15 and 191.17. On August 23, 1974, at a bail reduction hearing, the Commonwealth moved to discharge two of the detainers of the three then remaining, because no Governor's Warrants were available. A Governor's Warrant was then produced on the remaining undischarged Illinois detainer which detainer was at that point the only basis for holding
[ 238 Pa. Super. Page 587]
appellant. After combined hearings on appellant's Habeas Corpus petitions and extradition, held on August 28, 1974 and September 4, 1974, his Habeas Corpus petitions were denied and he was ordered extradited on November 4, 1974.
The Commonwealth contends that we should uphold the lower court's denial of appellant's Habeas Corpus petitions on the basis of our decision in Commonwealth ex rel. Douglass v. Aytch, 225 Pa. Superior Ct. 195, 310 A.2d 313, allocatur refused, 225 Pa. Superior Ct. xlii (1973). Douglass is cited for the proposition that a defendant who has been held on detainers and then discharged may be rearrested after discharge. With that principle we agree. Where a defendant has been held on detainers or warrant and is discharged, there is no prohibition against rearrest on a new warrant. See Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 252 A.2d 656 (1969); Commonwealth ex rel. Douglass v. Aytch, supra. See also, Commonwealth ex rel. Knowles v. Lester, supra at 429 n. 12, 321 A.2d at 641 n. 12.
Douglass, however, is not applicable here. Unlike the factual situation presented in Douglass, in the present case, appellant was never discharged from the Illinois detainer. Moreover, no new warrant was obtained, as was done in Douglass and in Flood, supra. Since the detainer constituted an arrest, Commonwealth ex rel. Knowles v. Lester, supra, the production of a Governor's Warrant was required within a maximum of 90 days of November 20, 1973, the date ...