No. 390 January Term, 1977, Appeal from the Order of the Superior Court at 86 October Term, 1976, affirming the Order of C.P. Philadelphia, denying Petition for Writ of Habeas Corpus and Granting Extradition at M.C. 75-07-0012.
Benjamin Lerner, Public Defender, John W. Packel, Asst. Public Defender, Steven A. Morley, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a concurring opinion in which Eagen, C. J., and Nix, J., join. Pomeroy, J., concurs in the result. Manderino, J., files a dissenting opinion.
On April 21, 1975, appellant, Drew Kelly Colbert, was arrested in Philadelphia. Appellant's arrest was premised on his alleged participation in the homicide of Clinton Dunn, Jr., of Aiken County, South Carolina. See § 13 of the
Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, § 1, et seq., 19 P.S. § 191.1, et seq. Appellant was preliminarily arraigned and a "thirty day" hearing, as required by § 15 of the Uniform Criminal Extradition Act, supra, was scheduled for May 19, 1975. Appellant was ordered detained in the Philadelphia Detention Center. On April 30, appellant's counsel filed a petition to transfer appellant to Pennypack House, a juvenile facility, in light of appellant's age -- seventeen.
On May 8, 1975, defense counsel filed a petition to transfer the case to the Family Division of the Court of Common Pleas of Philadelphia. On May 13, the petition to transfer to Pennypack House was granted, but the petition to transfer to the Family Division was denied. On May 19, pursuant to § 15 of the Uniform Criminal Extradition Act, appellant appeared in the Court of Common Pleas of Philadelphia; however, no Governor's Warrant had been received and, therefore, a thirty-day continuance was granted on June 18, 1975. Appellant again appeared in court and a second thirty-day continuance was granted.*fn1
On June 26, 1975, appellant filed a "petition to dismiss". The bases of dismissal were:
1. Lack of probable cause for his arrest.
2. Failure to comply with § 15 of the Uniform Criminal ...