No. 1050 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Montgomery County, No. 2408, July Term, 1974
Richard M. Lovenwirth, Pottstown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, Montemuro and DiSalle, JJ. Decision was rendered prior to DiSalle, J., leaving the bench of the Superior Court of Pennsylvania.
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Appellant, Samuel Foster, appeals from the lower court's denial, after hearing, of his requested relief under the Post-conviction
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Hearing Act.*fn1 (hereinafter P.C.H.A.) Appellant claims that his trial and appellate counsel were ineffective for failing to raise the defense of Agreement on Detainers, 42 Pa.C.S.A. § 9101, eff. June 27, 1978, a reenactment of the Act of September 8, 1959, P.L. 829, No. 324, § 1, 19 P.S. § 1431.*fn2
The salient facts are: The offense for which defendant was convicted occurred in Upper Moreland Township, Montgomery County, on July 10, 1972, and a criminal complaint was lodged against defendant on July 12, 1972. The day before, July 11, 1972, petitioner had been arrested on another offense in New Jersey. He was subsequently tried on the New Jersey offense, convicted and transferred to Federal custody. In July of 1972, the Upper Moreland Police Department lodged detainers against petitioner under the name Ralph Hargrove, a/k/a Samuel Foster, in Cinnaminson Township, New Jersey, but the department was not informed until September, 1973 that petitioner was incarcerated in the federal penitentiary in Petersburg, Virginia. On October 31, 1973, petitioner was for some reason delivered to the Philadelphia Detention Center apparently on the order of Judge Blake of Philadelphia.*fn3 According to stipulation by counsel, however, petitioner was in fact brought into Philadelphia on Montgomery County's detainer. Nevertheless, Upper Moreland authorities were not informed of his presence in Philadelphia until late December, 1973 or early January, 1974.
Appellant was then arraigned on the subject charges on January 3, 1974. A preliminary hearing was scheduled for January 10, 1974, but was postponed. Subsequently, on April 8, 1974, petitioner was sent back to Petersburg, Virginia,
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pursuant to an order issued by Judge Blake of Philadelphia. There was a gap in the chronology of events presented at the P.C.H.A. hearing, but it is apparent from the fact that a bail bond was issued on May 28, 1974, and from the testimony of Albert Deutsch, Esq., petitioner's trial counsel, that petitioner was released from Federal custody some time between April 8, 1974 and May 28, 1974, and voluntarily returned to Pennsylvania. The preliminary hearing was then held on July 9, 1974. On August 21, 1974, defendant appeared before Judge Smillie of Montgomery County, and agreed to a postponement of trial until October, 1974 so that his trial could be consolidated with a co-defendant's trial. A consolidated trial commenced on October 2, 1974, but on October 3, 1974, a severance was ordered. Defendant's trial proceeded, resulting in verdicts of guilty on October 7, 1974.
Specifically, appellant claims that his trial and appellate counsel were ineffective for failing to raise the defense of Article IV(e) of the Agreement ...