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filed: January 11, 1988.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Snyder County, Criminal Division at No. 22, 1984.


Stuart A. Cilo, Burnham, for appellant.

John T. Robinson, District Attorney, Middlesburg, for Com., appellee.

Cavanaugh, Brosky and Watkins, JJ.

Author: Brosky

[ 370 Pa. Super. Page 68]

This is an appeal from the Judgment of Sentence entered after a jury trial on convictions of felony escape, aggravated assault, reckless endangerment, terroristic threats, kidnapping, unlawful restraint and criminal conspiracy.

Appellant raises three errors to this court: First, whether the trial court erred in denying his Motion to dismiss the above charges on the basis of the Commonwealth's violation

[ 370 Pa. Super. Page 69]

    of Pa.R.Crim.P. 1100; secondly, whether the trial court also committed error in denying appellant's Motion to dismiss the above charges because the Commonwealth did not comply with the provisions of the Interstate Compact on Detainers, specifically, 42 Pa.C.S.A. § 9101, Article III(a); and thirdly, whether the trial court erroneously neglected to advise appellant of the potential prejudice to him by failing to perform a proper colloquy with him on the question of counseled representation. Perceiving no error, we affirm.

Appellant was convicted by a Snyder County Common Pleas Court jury on June 20, 1984, of the above charges. He was sentenced on September 17, 1984, to an aggregate term of eight and one-half to twenty years on the most serious charge, kidnapping, a felony of the first degree. The sentences on the other charges were to run concurrently with the kidnapping sentence. An appeal was taken from this judgment of sentence on October 8, 1984.*fn1

We will consider the first two issues together.

Appellant asserts that he was brought to trial beyond the 180-day period in Snyder County after he was advised that a detainer had been lodged against him and after he allegedly informed, in writing, the District Attorney of Snyder County and the trial court of the place of his incarceration and his request for a final disposition of the charges against him pursuant to Article III(a) of the Agreement on Detainers, 42 Pa.C.S.A. § 9101.

This voluminous and procedurally complex record discloses that appellant was a fugitive from Pennsylvania on the instant charges, having escaped on June 18, 1983, from the Snyder County Jail (N.T. 6-11-84, 9-10) and fled to the State of Wyoming. While in that jurisdiction, appellant was arrested and charged by the United States Government on approximately July 1, 1983, for violating the United States Crimes Code, specifically, 18 U.S.C. §§ 922(a)(6), and (h) and

[ 370 Pa. Super. Page 70924]

(a) for having made a false application to receive a firearm transported in interstate commerce and receiving said firearm while a probation violator. On July 20, 1983, appellant pleaded guilty to these four-count charges before the United States District Court for the District of Wyoming and was subsequently sentenced. The record does not disclose the date of sentence nor the duration thereof. Appellant was then transferred from the State of Wyoming to the Federal Penitentiary at Leavenworth, Kansas, on August 18, 1983. The District Attorney was also proceeding to obtain appellant's temporary custody but pursuant to Article IV of the Interstate Agreement (42 Pa.C.S.A. § 9101). This entire process lasted approximately six and one half months.

On July 25, 1983, the District Attorney wrote to appellant notifying the latter of his intention to secure appellant for prosecution on the instant charges then pending in Snyder County as soon as appellant's sentence on the aforementioned federal charges in the United States District Court in Wyoming had been handed down (Commonwealth's Exhibit No. 10). This letter was in response to appellant's letter to the District Attorney dated July 12, 1983 (Commonwealth's Exhibit No. 9), while incarcerated in a Cheyenne, Wyoming jail, informing the District Attorney of appellant's desire to waive extradition to Pennsylvania. This, incidentally, was prior to the entry of his guilty plea to the aforementioned federal charges on July 20, 1983. Appellant's second letter to the District Attorney, dated July 22, 1983, was in the nature of a "Formal Request Pursuant [sic] to 'The Interstate Agreement on Detainers,' [sic] For [sic] disposition of all charges outstanding in your county." (Defendant's Exhibit No. 33).

Appellant, after making his self-styled formal request of July 22, 1983, which he purports complies with Article III(a) of the said Agreement on Detainers, admits that he took no further action to process his release to Pennsylvania custody to be tried on the instant charges until he received a notice of a detainer from a District Justice in Oil City,

[ 370 Pa. Super. Page 71]

Venango County, Pennsylvania on September 20, 1983 (N.T. 6/13/87, 157). He then wrote a letter dated September 21, 1983, to the District Justice in Oil City "formally request [ing] disposition of that [Venango County] detainer in accordance with the Interstate Agreement on Detainers." (Defendant's Exhibit No. 41). Subsequently, On October 14, 1983, he received a notice of a detainer on the instant Snyder County charges (Defendant's Exhibit No. 43), pursuant to the initial September 12, 1983 Form 5 Request for Temporary Custody directed to the prison officials at Leavenworth Penitentiary (Defendant's Exhibit No. 43).

In the meantime, the District Attorney of Snyder County, in attempting to obtain temporary custody of appellant for trial on the Snyder County charges, first, by letter dated July 20, 1983 (Commonwealth's Exhibit No. 1) to the U.S. Attorney's Office in Cheyenne, Wyoming, inquired whether the United States Government would release appellant to the temporary custody of Pennsylvania to be tried on the Snyder County charges prior to appellant's prosecution and sentencing in Federal Court in Wyoming. Mr. Robinson, the District Attorney of Snyder County, was informed by David Kern, an Assistant United States Attorney for the District of Wyoming, that appellant had already pleaded guilty to the federal charges on July 20, 1983 and was awaiting sentencing (Commonwealth's Exhibit No. 2). He was subsequently informed by the prison authorities at Leavenworth that appellant would not be released from federal custody at Leavenworth to the custody of Pennsylvania because of prior escape episodes when this procedure had been utilized on previous occasions. (N.T. 6/4/84, 173). Mr. Robinson further explained that the Leavenworth authorities refused to recognize both the Form 5 filed on September 12, 1983, requesting temporary custody of appellant and the resultant Notice of Untried Charges (Defendant's Exhibit No. 3) for that reason. The Leavenworth authorities also refused to acknowledge the Interstate Agreement by not responding to the Form 5 request for temporary custody (N.T. 6-4-87, 174). In addition, numerous telephone calls were made to Leavenworth by Mr.

[ 370 Pa. Super. Page 72]

Robinson and his two secretaries, Mrs. Houtz and Mrs. Schrump, to ascertain appellant's whereabouts and status when he was being transferred from Cheyenne, Wyoming, to Leavenworth and from there to Lewisburg Federal Penitentiary. (See their testimony of June 4, 1983, generally, N.T. 145-208, passim). It was thus necessary for Mr. Robinson, on October 6, 1983, to write to the United States Bureau of Prisons requesting a transfer of appellant from Leavenworth to the federal penitentiary in Lewisburg, Pennsylvania, "to expedite the custodial exchange process." (Commonwealth's Exhibit No. 5; see also N.T. 6-4-84, 173-76).

On October 19, 1983, the Leavenworth authorities advised Mr. Robinson that appellant would not be temporarily released to Snyder County for trial from Leavenworth (N.T. 6-4-84, 180). Thus, approximately from October 6, 1983, the date of the letter to the Prison Bureau, or October 11, 1983, the date of Mr. Robinson's telephone conversation with a Mr. Attig from Leavenworth, until December 6, 1983, the prosecuting officials in Snyder County were awaiting word on whether appellant would be or had been transferred from Leavenworth to the federal penitentiary in Lewisburg, Pennsylvania (N.T. 6-4-84, 179, 197). On approximately December 6, 1983, Mr. Robinson, by phone call to Lewisburg was only then made aware that appellant would be transferred to Lewisburg within that two-week period (N.T. 6-4-84, 180).

Although the record does not indicate the exact date of appellant's arrival from Leavenworth to Lewisburg, his transfer was completed approximately in late December 1983, or early January 1984. This is borne out by two letters in the record. One, dated January 9, 1984, from appellant to Mr. Robinson informs the latter of the actual event of appellant's transfer from Leavenworth to Lewisburg, requests that all correspondence be directed to appellant there and informs the District Attorney that appellant will be filing various pre-trial motions (Defendant's Exhibit No. 46). The other letter from appellant to the Clerk of

[ 370 Pa. Super. Page 73]

Courts of Snyder County, Pennsylvania, dated January 10, 1984, informs that official of appellant's address change, and requests copies of the criminal complaints filed against him and advises that he will be preparing pre-trial motions (Defendant's Exhibit No. 47). Immediately subsequent to the letter of January 9, 1984, the District Attorney of Snyder County, on January 10, 1984, prepared a Form 5 Request for Temporary Custody pursuant to Article IV(a) of the Agreement. This form was filed with the Prothonotary of the Snyder County Common Pleas Court on January 16, 1984 (Commonwealth Exhibit No. 6). Appellant then on January 12, 1984, initially refused to sign a Memorandum requesting the 30-day waiting period or waiving the applicable period as provided for in Article IV(a) of the Agreement (Defendant's Exhibit No. 38).

Accordingly, by letter dated January 13, 1984, Lewisburg officials informed Mr. Robinson that appellant had refused to waive the 30-day waiting period and would be given that time for the Governor to Act upon the prisoner's contest of transfer pursuant to Article IV(a) (Commonwealth's Exhibit No. 11). Nevertheless, by letter dated January 23, 1984, and filed on January 31, 1984, with the Prothonotary of Snyder County, appellant informed the trial court of his waiver of the 30-day time period (Commonwealth's Exhibit No. 12). Appellant was then released to the Commonwealth and brought to the Huntingdon State Correctional Facility on February 13, 1984, to await trial on the instant charges. Trial commenced in Snyder County Common Pleas Court on June 11, 1984, after exhaustive omnibus pre-trial and suppression motion hearings on June 4, 1984 and June 11, 1984, continuing on June 13, 1984 and June 19, 1984. Additionally, the trial court held a hearing on February 22, 1984, on appellant's Motion to dismiss as well as an arraignment hearing on May 2, 1984.

We find that the foregoing minute delineation of this protracted and complex scenario from which the instant appeal evolves is a necessary adjunct to an appreciation of the first two issues now before us.

[ 370 Pa. Super. Page 74]

Appellant claims that the Commonwealth violated Article III(a) (42 Pa.C.S.A. § 9101) of the Agreement on Detainers. The result of this violation, appellant insists, was the expiration of the 180-day period during which the Commonwealth is required to bring an accused to trial after an accused "cause[s] to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . ." (Article III(a), 42 Pa.C.S.A. § 9101). According to appellant, the run date on these charges was February 2, 1984, which is purportedly 180 days after ...

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