J. Kerrington Lewis, P. Andrew Diamond, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case.
On March 2, 1974, Calvin McDonald, a resident of Detroit, Michigan, was arrested in Allegheny County and charged
with possession of a controlled substance -- heroin valued at $200,000 -- and possession of a controlled substance with intent to deliver. Bail was set at $100,000 at 8% plus a $25,000 surety bond. The former was secured by a cash deposit of $8,000 with the clerk of courts; the latter was filed by the Allegheny County Casualty Company.
A jury trial began on November 7, 1974. During the trial McDonald failed to appear in court on November 13 and did not appear until the afternoon of November 14. The trial judge, meanwhile, declared his bail forfeited, but directed that the trial continue in his absence. After his return, the jury found him guilty as charged. The court learned that during his absence he had traveled to Detroit, where he had been arrested on other criminal charges. After his conviction in Pennsylvania, the trial court reinstated his bail but directed that the surety bond be increased to $50,000. The Allegheny County Casualty Company filed a second bond in the amount of $25,000, and McDonald was again free on bail.
On April 8, 1975, the Court of Common Pleas granted McDonald a new trial. Previously, however, he had been convicted on an unrelated federal charge, bail pending appeal in that case had been denied, and he had been committed to a federal prison in Indiana. Learning of this, the district attorney of Allegheny County filed a detainer with the federal authorities pursuant to which McDonald was removed to prison in Allegheny County to await his new trial on the Pennsylvania charges.*fn1
McDonald then sought to have the detainer vacated, alleging that it was contrary to the court's order permitting him bail. The court refused to vacate the detainer, and McDonald remained in prison. Subsequently, the two $25,000 surety bonds posted by the Allegheny County Casualty Company were rescinded, and the surety exonerated from its
obligations under them.*fn2 McDonald then petitioned the court to return to him the $8,000 bail deposit on the ground that he was now in custody and in effect without bail. At a hearing on July 3, 1975, the hearing judge was advised the money was actually put up by McDonald's family, but the judge declared he wanted "to await the ...