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decided: December 22, 1978.


NO. 397 OCTOBER TERM, 1977, Appeal from the Order of the Court of Common Pleas of Montgomery County, at Misc. No. 409 July Term, 1976, Criminal.


Thomas C. Branca, Lansdale, for appellant.

Francis Fillippi, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Watkins, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 261 Pa. Super. Page 277]

Appellant Johnny Coleman was sentenced by a Pennsylvania court in May of 1976 to serve a term of two to five years imprisonment. While appellant was serving his term, the state of New Jersey attempted to extradite him to stand trial on a 1971 New Jersey weapons charge.*fn1 On September 3, 1976, appellant filed a petition for a writ of habeas corpus, arguing that the Detainers Agreement,*fn2 which provided the procedure for his extradition, violated the constitutional guarantees of due process and equal protection. Hearing was held on the petition on October 19, 1976, after which the lower court dismissed the petition and denied the relief requested. Appeal was then taken to our court.

Article IV, section 2, clause 2 of the United States Constitution provides: "A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." Federal statutory law, specifically 18 U.S.C., sections 3182,*fn3 3194 and 3195, contains additional provision for

[ 261 Pa. Super. Page 278]

    the interstate extradition of persons charged with crime. In addition, various states have enacted the Uniform Criminal Extradition Act*fn4 and the Agreement on Detainers in order to provide uniform and detailed procedure for extradition. The Pennsylvania Legislature enacted the Extradition Act in 1941, the Detainers Act in 1959.

Under section 2 of the Extradition Act, it is the duty of the Governor of Pennsylvania to arrest and deliver to the agent of the executive authority of any other state any person found in Pennsylvania who is charged with having committed a crime in the demanding state. Section 3 of the Act provides that the Governor shall not recognize the demand unless it is in writing and alleges that the person was present in the demanding state at the time of the commission of a crime and that the person "fled" from the demanding state. (Exceptions to these requirements are set forth in sections 5 and 6.) The demand must be accompanied by a copy of the indictment, the information (supported by affidavit), the judgment of conviction or sentence (along with a statement by the executive authority of the demanding state that the person demanded escaped from confinement or broke the terms of bail, probation, or parole), or by an affidavit made before a magistrate in the demanding state charging the person with having committed a crime in the demanding state (along with any warrant issued thereupon). The copy of the indictment, information, affidavit, or judgment of conviction or sentence must be authenticated by the executive authority making the demand. (Section 3.)

[ 261 Pa. Super. Page 279]

The Act authorizes but does not require the Governor to investigate the demand. (Section 4.) If the Governor decides that the demand should be complied with, he signs a warrant of arrest (section 7), authorizing the arrest of the person "at any time and any place [apparently including prison] where he may be found within [Pennsylvania]. . . ." Before being delivered to the agent of the demanding state, the person must be taken before a judge of a Pennsylvania court of record, and must be informed of three things: the demand which has been made for his surrender, the crime with which he is charged in the demanding state, and the right "to demand and procure legal counsel." (Section 10.) If the person indicates that he wants to test the legality of his arrest, the judge must set a reasonable time within which the person may apply for a writ of habeas corpus. (Section 10.) If the person fails to inform the court that he wants to challenge the legality of his extradition, or if he does so notify the court and receives a habeas corpus hearing but fails to convince the habeas corpus court of the illegality of extraditing him, then the person will be delivered to the agent of the demanding state.

In contrast to the Extradition Act, which act's procedure should be followed in Pennsylvania regardless of whether the demanding state has also enacted that statute,*fn5 the Detainers Agreement applies only if the demanding state, as well as Pennsylvania, is a party.*fn6 Unlike the Extradition Act, the Detainers Agreement applies only to

[ 261 Pa. Super. Page 280]

    persons already incarcerated in the sending state. (Article I.) Under the Agreement, the demanding state's court having jurisdiction of the indictment, information, or complaint must approve, record, and transmit to the appropriate authorities of the sending state a written request for the prisoner. (Article IV(a)). The prisoner must be notified of the source and contents of any detainer lodged against him, and of his right to request final disposition of the charges. (Article III(c)). The Agreement provides for a thirty-day waiting period before the prisoner can be delivered to agents of the demanding state, Article IV(a), during which period the prisoner may take whatever action he deems appropriate. Such action may include filing a petition for a writ of habeas corpus (action taken by appellant in the case before us) or petitioning the Governor of Pennsylvania. In addition, during this time the Governor of Pennsylvania may on his own motion disapprove the request of the demanding state, Article IV(a), subject to the requirement of Section 3 of the Agreement (19 P.S. Section 1433) that all officers and employees of this Commonwealth enforce the Agreement and cooperate to effectuate its purposes.

Appellant argues that the Detainers Agreement violates the due process clause of the United States Constitution in that it fails to provide for a hearing, for the right to counsel, and for the right to confront and cross-examine witnesses. We are not persuaded by appellant's arguments. Our court has previously noted that, because of the summary nature of interstate rendition proceedings, an accused is not entitled to the full panoply of procedural protections which are accorded a defendant in a criminal trial. Commonwealth v. Kulp, 225 Pa. Super. 345, 310 A.2d 399 (1973). "The procedural safeguards required in most criminal proceedings are irrelevant to extradition proceedings." Commonwealth ex rel. Colcough v. Aytch, 227 Pa. Super. 527, 531, 323 A.2d 359, 361 (1974). Appellant cites no Pennsylvania cases which support his specific arguments, and we ourselves are aware of none. The various issues, however, have arisen in other jurisdictions.

[ 261 Pa. Super. Page 281]

In Marbles v. Creecy, 215 U.S. 63, 30 S.Ct. 32, 54 L.Ed. 92 (1909), a petitioner argued that his constitutional rights had been violated because he had not been before the governor of Missouri for a hearing on the extradition warrant, and because he had not been given an opportunity to meet witnesses face to face. The United States Supreme Court affirmed the lower court's denial of the petition for a writ of habeas corpus, stating: "The contention that the governor of Missouri could not act at all on the requisition papers in the absence of the accused, and without previous notice to him, is unsupported by reason or authority, and need only be stated to be rejected as unsound." 215 U.S. at 68, 30 S.Ct. at 33. In Feilke v. Governor, State of New Jersey, 414 F.Supp. 10 (E.D.Pa.1976), a detainer had been lodged against a prisoner by the state of New Jersey, and the prisoner had never been notified of it officially and had never been given a chance to challenge the sufficiency of the warrant. The court held that "it is a well-settled principle of law that a prisoner does not have a constitutional right to receive notice of, and participate in, extradition proceedings." 414 F.Supp. at 11. In Hystad v. Rhay, 12 Wash.App. 872, 533 P.2d 409 (1975), a petitioner argued that his constitutional rights had been violated because he hadn't been informed that he had a right to have counsel appointed to represent him if he was indigent, and because he hadn't been specifically notified by a court that he could file a writ of habeas corpus to contest the legality of his delivery. The Washington Court of Appeals held that the petitioner had no right to free counsel if indigent, since no loss of liberty was involved, and also that the prisoner did not have to be informed by a court of the availability of the writ of habeas corpus. In United States ex rel. Huntt v. Russell, 285 F.Supp. 765 (E.D.Pa.1968),*fn7 a petitioner for federal habeas corpus relief argued that Pennsylvania's failure to provide him with counsel at two extradition hearings violated his

[ 261 Pa. Super. Page 282]

    due process rights. The court found that if forcible abduction for trial was not a due process violation, Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), then "lack of counsel on extradition certainly is not." 285 F.Supp. at 767. We find ourselves in accord with those courts which have found that the due process clause of the United States Constitution does not require that a prisoner be given an extradition hearing and provided with counsel and an opportunity to confront and cross-examine witnesses.

Appellant further argues that his due process rights were violated because he wasn't given notice of his "right" to petition the governor to disapprove extradition, and wasn't given notice of the existence of the thirty day waiting period. Although Article IV(a) of the Agreement states that the governor may, on his own motion or upon motion of the prisoner, disapprove the request for temporary custody,*fn8 the section does not actually confer upon a prisoner the "right" to petition the governor. The prisoner may petition the governor to disapprove extradition just as he may petition the governor to pardon him or to veto a bill or to mail him a calendar. The governor has absolutely no obligation to honor any of these requests or even to read them. We will not read into the Agreement the requirement that a prisoner against whom a detainer is lodged be informed that he can petition the governor to disapprove the demanding state's request for temporary custody. As for the thirty day waiting period, we similarly find no requirement that appellant be given notice. The waiting period is simply a step in the procedure provided by the Agreement, and appellant has no more of a due process right to notice of this step than he has a right to have outlined for him the entire procedure under the Agreement, from the form that a demand must take, to the credentials which must be presented

[ 261 Pa. Super. Page 283]

    by an agent of the demanding state before the prisoner may be ...

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