Com. ex rel. Lattimore v. Gedney

• Decision Date: 22 April 1976
• Parties: COMMONWEALTH of Pennsylvania ex rel. William LATTIMORE, Appellant, v. Dewaine GEDNEY, Director, Pre-Trial Services, Court Bail Program.
• Court: Pennsylvania Superior Court

363 A.2d 786

240 Pa.Super. 226

COMMONWEALTH of Pennsylvania ex rel. William LATTIMORE, Appellant, v. Dewaine GEDNEY, Director, Pre-Trial Services, Court Bail Program.

Superior Court of Pennsylvania.

April 22, 1976.

[Copyrighted Material Omitted]

John W. Packel, Asst. Public Defender, Chief Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS Judge:

Appellant William K. Lattimore brings this appeal from denial of his petition for a Writ of Habeas Corpus and from the granting of an order of extradition.

The relevant facts are as follows: Appellant was arrested in Philadelphia on January 30, 1974 and charged with burglary, theft and receiving stolen property. While appellant was incarcerated on the aforementioned local charges an arrest warrant charging appellant with being a fugitive from Tennessee was lodged as a detainer against him. On April 1, 1974 appellant entered a plea of guilty to theft by receiving stolen property and the other local charges were nolle prossed. A preliminary arraignment was held at the same time on the fugitive charge, bail was set at $1,000.00 and a hearing was set for May 1, 1974. ^[1] On May 1, 1974 the governor's warrants and accompanying extradition documents had not yet arrived, and the matter was continued.

On May 30, 1974 the governor's warrants arrived, along with other extradition documents. Appellant then requested and was granted leave to file a Petition for Writ of Habeas Corpus. The petition was filed June 10, 1974. Appellant claimed therein, Inter alia, that his detention was illegal because the Commonwealth had not proven: that he was in Tennessee, the demanding state, at the time of the commission of the crime charged; that he was charged with a crime in Tennessee; that he was a fugitive from Tennessee; and that requisition papers had been issued, were in order and were properly lodged and served within ninety days of his arrest as a fugitive.

Appellant did not appear for the June 25, 1974 hearing on his habeas corpus petition and a bench warrant was thereafter issued for his arrest. On December 21, 1974 he was again arrested on local charges in Philadelphia, at which time he used the name James Harris. In January, 1975, it was discovered that appellant and 'James Harris' were the same person. A bench warrant hearing was thereafter held, on January 13, 1975, and additional bail of $3,500.00 was set. On February 21, 1975 a petition to dismiss was filed, which petition was argued before Judge Doty and denied on the same date. In his petition to dismiss appellant alleged for the first time that his rights under Section 15 of the Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, § 15, 19 P.S. § 191.15 (1962) were violated. He complained therein that Section 15 of the Extradition Act had been violated because he was not given an examination before a judge or magistrate to determine that he was the person charged with having committed the crime charged and to determine that he had fled from justice. ^[2]

Testimony was taken relative to both the petition to dismiss and to appellant's June 10, 1974 petition for writ of habeas corpus at the February 21, 1975 hearing. Appellant there testified that no evidence had been presented to indicate that he was the person wanted in Tennessee at any of the prior hearings. The Commonwealth introduced the testimony of Detective Magen, Philadelphia Police Department, and of Detective Coleman, Knoxville, Tennessee Police Department, at the hearing. Detective Magen testified, erroneously, that the fugitive warrant had been lodged on April 1, 1974. ^[3] Detective Coleman identified appellant as the person demanded in the Governor's Warrants and extradition documents. The extradition papers were also introduced into evidence.

On May 12, 1975 Judge DOTY denied the Petition for Writ of Habeas Corpus and ordered appellant extradited. Appeal was then taken to this Court. Appellant thereafter petitioned for Remission of the Record for the purpose of showing that the fugitive detainer was lodged on January 31, 1974, and not April 1, 1974, as testified to by Detective Magen. The petition for remission of the record was denied on October 3, 1975.

Appellant raises four issues here, none of which, in our opinion, entitle him to the relief sought. We therefore affirm the ruling of the court below, for the reasons that follow.

Appellant's first contention is that his habeas corpus petition should have been granted because no hearing was held between January 31, 1974 and April 1, 1974 and because he was not given a 'thirty-day hearing,' pursuant to Section 15 of the Uniform Criminal Extradition Act, 19 P.S. § 191.15, until May 1, 1974. Additionally, he claims he is entitled to discharge because the Governor's Warrants were not produced until more than 90 days after his 'arrest' under the Act. See Commonwealth ex rel. Knowles v. Lester, supra, note 2.

The Commonwealth argues and appellant concedes that this basis for relief was not argued below. For that reason we may not consider this contention here. See e.g., Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974). However, appellant argues that we should consider this issue even though not raised below, because he was misled by Detective Magen's erroneous testimony concerning the date the fugitive warrant was lodged. We cannot accept this contention. The record discloses that Detective Magen's error was easily discoverable on the face thereof. Moreover, Detective Magen's erroneous testimony had not even been given nor had the occurrences he later confused happened at the time the habeas corpus petition was filed. If appellant suffered from any misapprehension concerning the facts it could have only resulted from his own failure to review the face of the documents of record.

Appellant further claims that his arrest under Section 13 ^[4] of the Uniform Criminal Extradition Act was unconstitutional, '. . . in that Section 13, which requires that a credible person appear before a magistrate and (upon oath) charge the accused with having committed a crime in another state and with having fled from that state, Does not require the credible person to supply the magistrate with the Basis upon which he makes his allegations; and, in fact, the basis is Not contained in the warrant or complaint.' Appellant's Brief at 14. The first aspect of this two pronged attack, dealing with the constitutionality of the statute, was neither raised nor argued below. That issue is therefore not preserved for review here. Commonwealth v. Clair, supra; Commonwealth v. Reid, supra.

The second aspect of this claim, as we understand it, is that the complaint charging appellant with being a person who had committed a crime in another state was issued without probable cause. Although this claim was specifically raised below, it is raised here only as a part of appellant's argument that Section 13 of the Extradition Act is unconstitutional. Assuming the validity of Section 13, as we must, we find no merit in this contention.

"There is, of course, no doubt that the issuing authority must have probable cause to believe a suspect guilty of a crime charged against him before issuing a warrant for his arrest.' Commonwealth v. Krall, 452 Pa. 215, 218, 304 A.2d 488, 489 (1973). It is equally clear, however, that, under the Uniform Criminal Extradition Act an accused person is imprisoned by reason of the offenses charged in the demanding state. See Commonwealth ex rel. Bleecher v. Rundle, 207 Pa.Super. 443, 217 A.2d 772 (1966). We have recently held that probable cause for arrest in the demanding state need not be demonstrated in the asylum state before extradition may be granted, Commonwealth ex rel. Marshall v. Gedney, 237 Pa.Super. 372, 352 A.2d 528 (filed December 1, 1975), and that the papers accompanying the Governor's Warrant need not show probable cause to arrest. It therefore follows that since the crime charged is that committed in the demanding state and probable cause for arrest there need not be shown in the asylum state, there is no requirement that the magistrate who issues a warrant for arrest under Section 13, in the asylum state, do so only after determining that there is probable cause for arrest in the demanding state. To otherwise hold would be to impose a requirement upon preliminary detention under the Uniform Criminal Extradition Act which is unrequired for ultimate disposition thereunder. See Id., see also Commonwealth ex rel. Ebbole v. Robinson, 223 Pa.Super. 119, 229 A.2d 47 (1972). As this Court has observed in Commonwealth ex rel. Marshall v. Gedney, supra, the extradition statutes have as their purpose expeditious and summary executive procedures for returning fugitives to the demanding state, and the relator has every opportunity to assert his rights under the fourth and fourteenth amendments in the demanding state.

Even were we to assume, Arguendo, that the initial arrest here was defective, it would not necessarily follow that the defect voided the subsequent proceedings which here included disposition of appellant's case through production of a new complaint in the form of a governor's warrant and through a hearing on extradition. See Commonwealth v. Krall, supra, 452 Pa. at 221, 304 A.2d at 490. See also Pa.R.Crim.P. 150.

Appellant also contends that the extradition papers were not in order because the date of the alleged crime committed in Tennessee was not specific. The certified copy of the indictment contained in the documents alleges that the...