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COMMONWEALTH PENNSYLVANIA v. BERNARD TENNER (07/18/88)

submitted: July 18, 1988.

COMMONWEALTH OF PENNSYLVANIA,
v.
BERNARD TENNER, APPELLANT



Appeal from the PCHA March 9, 1988, in the Court of Common Pleas of Philadelphia County, Criminal, No. 79-05, No. 748-754.

COUNSEL

Marlene Cooperman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Olszewski and Montemuro, JJ.

Author: Olszewski

[ 377 Pa. Super. Page 542]

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act ("PCHA") which alleged that trial counsel was ineffective for failing to demonstrate at a Rule 1100 hearing, via documentary evidence, that the Commonwealth had failed to exercise due diligence. We affirm the denial of the petition.

On January 7, 1978, appellant and an accomplice forced entry into the home of Mildred Clark and bound and gagged her, threatened to kill her, stabbed her five times, and fled with her cash and jewelry. As a result, law enforcement officials in Philadelphia filed a criminal complaint against appellant charging him with burglary, robbery, simple assault, aggravated assault, possessing instruments of crime, recklessly endangering another person, unlawful restraint, and criminal conspiracy. When appellant could not be

[ 377 Pa. Super. Page 543]

    located near his home, the arresting officer supplied photographs and other information to the anti-crime teams and had appellant's photograph shown at all uniform roll calls throughout the city. In April 1978, appellant's father's girlfriend informed police that appellant was residing in Florida. A copy of the warrant and appellant's physical description were forwarded to the Miami Police Department, after which a wanted bulletin was published.

On August 25, 1978, Philadelphia police received a computer message indicating that appellant had been arrested for armed robbery in Florida. On September 15, the Miami Police Department informed Philadelphia authorities that appellant had been arraigned as a fugitive from Pennsylvania and had refused to sign a waiver of extradition. Rule 1100 hearing at 37. Soon thereafter, Philadelphia authorities began extradition procedures by requesting a governor's warrant for appellant. After appellant was sentenced on the Florida charges, Pennsylvania authorities sent a detainer and appellant was delivered to Pennsylvania on April 4, 1979.

After a Rule 1100 hearing on May 22, 1979, the trial court held that Philadelphia police and the district attorney's office acted with due diligence in securing appellant's return to the Commonwealth. In so finding, the trial court specifically held emphasized:

There has been received and the Court has admitted into evidence Defense Exhibit D-1, which purports to be a Waiver 6-E of extradition, such being, however a photocopy. Said document speaks for itself; but, among others, there appears thereon the date of August 30, 1978. The Court hereby finds, as a matter of fact, that [Miami police] did inform [Philadelphia police], whether it be right or wrong or incorrectly or otherwise, nevertheless, did inform [Philadelphia police] that [appellant] . . . refused to waive ...


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