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.
[ 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 ...