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decided: October 6, 1977.


No. 818 October Term, 1976, Appeal from the Order of the Court of Common Pleas of Bucks County, Criminal Division, at No. 79 of 1975.


Stephen B. Harris, First Assistant District Attorney, Warrington, for appellant.

J. Eric Atherholt, Assistant Public Defender, Doylestown, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Jacobs, J., dissents.

Author: Price

[ 250 Pa. Super. Page 244]

This is an appeal from an order of the court below granting a petition for a writ of habeas corpus and discharging the relator, Thomas Lee Myers. We vacate the order below and order the relator to be extradited to New Jersey.

On August 9, 1975, the relator was arrested in Bucks County for passing bad checks. On that same day, a Middletown Township detective lodged a complaint against the relator, charging him with being a fugitive from justice from New Jersey. The relator was subsequently arrested*fn1 and arraigned*fn2 on the fugitive charge. On August 12, 1975,

[ 250 Pa. Super. Page 245]

    a fugitive detainer from New Jersey was lodged against the relator with Pennsylvania authorities. When the Commonwealth did not receive the Governor's Warrant and other necessary extradition documents within thirty days after the relator was taken into custody, a District Justice of the Peace of Bucks County recommitted the relator for an additional sixty days pursuant to Sections 191.15 and 191.17 of the Uniform Criminal Extradition Act.*fn3 The Commonwealth received the Governor's Warrant on September 17, 1975, which was within the prescribed period of ninety days.*fn4 At this time, the relator was serving a sentence resulting from the local bad check charges. On November 25, 1975, after the appellant had been paroled on the local charges, the Commonwealth executed the Governor's Warrant. A Bucks County detective testified that the Governor's Warrant was not executed when it was received ". . . because the defendant was then serving a sentence in the Bucks County Prison and it would be . . . a waste of time to actually arrest him on the Governor's warrant because he wasn't free to go anyplace." (NT 7) Immediately upon the execution of the Governor's Warrant, the relator was advised by a lower court judge of his right to test the legality of his arrest, as prescribed by Section 191.10 of the Act.

On December 1, 1975, the relator petitioned the court below for a writ of habeas corpus, contending that the writ should issue because the Commonwealth had not executed the Governor's Warrant until fifteen days after the ninety

[ 250 Pa. Super. Page 246]

    day period had expired. The lower court agreed with this contention and discharged the relator.

There is no question that the Commonwealth did not arrest the relator under the Governor's Warrant until after the expiration of the prescribed ninety day period. In Commonwealth v. McCaine, 218 Pa. Super. 274, 276-77, 275 A.2d 867, 868 (1971), quoting Commonwealth ex rel. Aronson v. Price, 412 Pa. 493, 495, 194 A.2d 881, 882 (1963), we stated that the courts of this Commonwealth have "'. . . an obligation to make certain that the requirements of the Uniform Extradition Act have been satisfied before permitting one to be surrendered to the executive authority of the demanding state.'" However, technical or formal objections will not invalidate an extradition proceeding. Commonwealth ex rel. Osburn v. Haas, 439 Pa. 341, 268 A.2d 85 (1970); Commonwealth v. Murphy, 236 Pa. Super. 37, 344 A.2d 662 (1975). The Commonwealth claims that its failure to execute timely the Governor's Warrant was merely a "formalistic oversight," not entitling the relator to be discharged. After careful review of the record, we conclude that the procedures involved in this case substantially complied with the requirements of the Act and adequately safeguarded the rights of the relator.

We believe the instant case to be controlled by the decision of the Pennsylvania Supreme Court in Commonwealth ex rel. Osburn v. Haas, supra. In Osburn, the relator contended that he should be discharged because the Commonwealth had failed to arrest him on the Governor's Warrant within thirty days of his initial arrest on the magistrate's warrant, as required by Section 191.15 of the Act.*fn5

[ 250 Pa. Super. Page 247]

The court in Osburn rejected the relator's contention, holding:

"As appellant was properly in the custody of the appellee at the time the Governor's warrant was issued, and as that warrant was issued within thirty days of appellant's initial arrest, we cannot see what possible harm appellant suffered by virtue of the failure formally to re-arrest him. The Act having been complied with in all essential particulars, we agree with the court below that this formalistic oversight does not entitle appellant to the writ." Commonwealth ex rel. Osburn v. Haas, supra 439 Pa. at 345-46, 268 A.2d at 87.

The relator, in support of his petition, contends that 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), rather than by its decision in Osburn. In Lester, the court held that the lodging of a fugitive detainer against a person already in custody constituted an arrest within the meaning of the Uniform Criminal Extradition Act and failure to arraign a person until more than 140 days after such arrest energizes the prescribed remedy of habeas corpus. Lester, however, is clearly distinguishable from the case at bar and Osburn. In the instant case, and in Osburn, the relator was preliminarily arraigned at the time of his initial confinement. See Commonwealth v. Murphy, supra.*fn6 In Lester, no hearing was held at all for 141 days. The relator in the instant case received a hearing at the time of his arrest, at the time of his re-arrest on the Governor's Warrant, and upon his petition for habeas corpus. Certainly, the relator's constitutional rights were not violated by the procedures employed in this Commonwealth. See Commonwealth ex rel. Huey v. Dye, 373 Pa. 508, 96 A.2d 129 (1953).

[ 250 Pa. Super. Page 248]

The relator also contends that if the court's holding in Osburn is applied in this case, then the Commonwealth could wait indefinitely to execute a Governor's Warrant if the appellant was incarcerated on another charge.*fn7 This position is untenable. Implicit in Osburn is the recognition that if the prescribed period has expired, then the relator need only apply for a writ of habeas corpus in order to assert his rights under the Act. If the relator has not received a preliminary hearing, then Lester would apply, and the relator would be discharged. However, if the relator has been formally charged, if the Governor's Warrant has been timely received, and if the Governor's Warrant has been executed within a reasonable time after the expiration of the prescribed period, then, under Osburn, the lower court may properly determine that the relator's rights have been adequately safeguarded and that only a technical violation of the Act has occurred. Here, unlike Osburn, it is apparent that the Commonwealth's failure to execute the Governor's Warrant was not an "oversight." The Commonwealth deliberately failed to act until after the relator had been paroled on his local sentence. However, the execution of the Governor's Warrant still occurred within fifteen days after the expiration of the ninety day period. Certainly, in view of the safeguards afforded the relator, this violation of the Act can only be classified as technical.*fn8

[ 250 Pa. Super. Page 249]

The relator does not contend that the Commonwealth failed to present sufficient evidence to extradite.*fn9 The relator based his petition for a writ of habeas corpus solely upon the Commonwealth's delay in executing the Governor's Warrant. We reverse the order below granting the relator's petition for a writ of habeas corpus and order extradition.

SPAETH, Judge, concurring:

I agree that the relator may be extradited. Absent a violation of the rule of Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974), habeas corpus relief is warranted only when sought after the expiration of the prescribed period (whether thirty or, if extended, ninety days) and before a governor's warrant is executed. Cohen v. Warden, 252 F.Supp. 666 (D.C.Md.1966); In re Colasanti, 104 N.J.Super. 122, 249 A.2d 1 (1969) (per curiam); People ex rel. Gummow v. Larson, 35 Ill.2d 280, 220 N.E.2d 165 (1966); People ex rel. Green v. Nenna, 53 Misc.2d 525, 279 N.Y.S.2d 324 (Sup.Ct.1965), aff'd, 24 A.D.2d 936, 264 N.Y.S.2d 211 (Sup.Ct.App.Div.1965), aff'd, 17 N.Y.2d 815, 271 N.Y.S.2d 267, 218 N.E.2d 311 (1966).

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