No. 2 Special Transfer Docket, Appeal from the Judgment of Sentence of the Dauphin County Court of Common Pleas at Nos. 1029, 1275 Criminal Division 1975
C. Van Youngman, Philadelphia, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* This decision was reached prior to the death of Manderino, J.
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Appellant, Charles Diggs, was convicted by a jury of murder of the first degree and kidnapping, after sentencing, this appeal followed.
Appellant's counsel raises only one issue contending that the trial court erred in failing to dismiss the charges for murder and kidnapping since dismissal of the charges was required under the Interstate Agreement on Detainers Act. Act of Sept. 8, 1959, P.L. 829, No. 324, 19 P.S. § 1431. Under that Act, a jurisdiction which obtains temporary custody of a prisoner from another jurisdiction as a result of a detainer
[ 273 Pa. Super. Page 123]
must, before returning the prisoner to the original jurisdiction, finally dispose of all pending charges against the prisoner. 19 P.S. § 1431, Art. IV(e). If the prisoner is returned to the original jurisdiction, any pending charges, which have not been finally prosecuted, must be dismissed with prejudice. In this case, Pennsylvania obtained temporary custody of appellant, who was a prisoner at the time under the jurisdiction of the federal government, which is a party, as is Pennsylvania, to the Interstate Agreement on Detainers Act. Commonwealth v. Merlo, 242 Pa. Super. 517, 364 A.2d 391 (1976).
Before the final disposition of all pending charges against the prisoner in Pennsylvania, a federal court ordered him returned to federal jurisdiction for a case study commitment to determine a proper sentence as to crimes for which he had been convicted prior to his transfer to Pennsylvania from federal custody. After Dauphin County authorities became aware of appellant's removal, they petitioned the federal court and custody of appellant was again transferred from the federal government to Pennsylvania.
We do not agree with appellant that the return to federal custody for the case study connected with his federal sentencing required a dismissal of the outstanding charges in Pennsylvania on which no final disposition had been made prior to appellant's return to federal custody. A dismissal of the charges under the Interstate Agreement on Detainers Act would have been required only if appellant had been originally obtained from federal custody as a result of a detainer lodged by a law enforcement official. The trial court found that no such detainer was lodged and appellant's brief before us does not contend otherwise. Rather, Pennsylvania originally obtained custody of appellant as a result of a writ of habeas corpus ad prosequendum. The "writ" and a "detainer" are two different methods by which one jurisdiction may obtain custody of a person in another jurisdiction. The Interstate Agreement on Detainers does not apply when custody was obtained by means of writ of habeas corpus ad prosequendum. This specific issue has
[ 273 Pa. Super. Page 124]
been decided in United States v. Mauro, 436 U.S. 340, 56 L.Ed.2d ...