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COMMONWEALTH EX REL. LATTIMORE v. GEDNEY (04/22/76)

decided: April 22, 1976.

COMMONWEALTH EX REL. LATTIMORE, APPELLANT,
v.
GEDNEY



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nos. 74-06-0002 and 74-04-0084, in case of Commonwealth of Pennsylvania ex rel. William Lattimore v. Dewaine Gedney, Director, Pre-Trial Services, Court Bail Program.

COUNSEL

Albert J. Snite, Jr., and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Howell K. Rosenberg, James A. Shellenberger, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Jacobs

[ 240 Pa. Super. Page 228]

Appellant William K. Lattimore brings this appeal from denial of his petition for a Writ of Habeas Corpus and from the granting of an order of extradition.

The relevant facts are as follows: Appellant was arrested in Philadelphia on January 30, 1974 and charged with burglary, theft and receiving stolen property. While appellant was incarcerated on the aforementioned local charges an arrest warrant charging appellant with being a fugitive from Tennessee was lodged as a detainer against him. On April 1, 1974

[ 240 Pa. Super. Page 229]

    appellant entered a plea of guilty to theft by receiving stolen property and the other local charges were nolle prossed. A preliminary arraignment was held at the same time on the fugitive charge, bail was set at $1,000.00 and a hearing was set for May 1, 1974.*fn1 On May 1, 1974 the governor's warrants and accompanying extradition documents had not yet arrived, and the matter was continued.

On May 30, 1974 the governor's warrants arrived, along with other extradition documents. Appellant then requested and was granted leave to file a Petition for Writ of Habeas Corpus. The petition was filed June 10, 1974. Appellant claimed therein, inter alia, that his detention was illegal because the Commonwealth had not proven: that he was in Tennessee, the demanding state, at the time of the commission of the crime charged; that he was charged with a crime in Tennessee; that he was a fugitive from Tennessee; and that requisition papers had been issued, were in order and were properly lodged and served within ninety days of his arrest as a fugitive.

Appellant did not appear for the June 25, 1974 hearing on his habeas corpus petition and a bench warrant was thereafter issued for his arrest. On December 21, 1974 he was again arrested on local charges in Philadelphia, at which time he used the name James Harris. In January, 1975, it was discovered that appellant and "James Harris" were the same person. A bench warrant hearing was thereafter held, on January 13, 1975, and additional bail of $3,500.00 was set. On February 21, 1975 a petition to dismiss was filed, which petition was argued before Judge Doty and denied on the same date. In his petition to dismiss appellant alleged for the first time that his rights under Section 15 of the

[ 240 Pa. Super. Page 230]

Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, § 15, 19 P.S. § 191.15 (1962) were violated. He complained therein that Section 15 of the Extradition Act had been violated because he was not given an examination before a judge or magistrate to determine that he was the person charged with having committed the crime charged and to determine that he had fled from justice.*fn2

Testimony was taken relative to both the petition to dismiss and to appellant's June 10, 1974 petition for writ of habeas corpus at the February 21, 1975 hearing. Appellant there testified that no evidence had been presented to indicate that he was the person wanted in Tennessee at any of the prior hearings. The Commonwealth introduced the testimony of Detective Magen, Philadelphia Police Department, and of Detective Coleman, Knoxville, Tennessee Police Department, ...


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