Com. v. Quackenbush

• Court: Superior Court of Pennsylvania
• Writing for the Court: CAVANAUGH; HESTER; HESTER
• Citation: 435 A.2d 872,291 Pa.Super. 209
• Parties: COMMONWEALTH of Pennsylvania, v. Milton QUACKENBUSH, Appellant.
• Decision Date: 25 September 1981

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435 A.2d 872 291 Pa.Super. 209 COMMONWEALTH of Pennsylvania,
v.
Milton QUACKENBUSH, Appellant. Superior Court of Pennsylvania. Argued June 11, 1980.
Filed Sept. 25, 1981.

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[291 Pa.Super. 211] John Kocsis, Athens, for appellant.

Leonard Frawley, Dist. Atty., Towanda, for Commonwealth, appellee.

Before HESTER, CAVANAUGH and VAN der VOORT, JJ.

CAVANAUGH, Judge:

The defendant appeals from an order directing his extradition to New York. He argues, one, that his confinement in jail for more than thirty days without a hearing to extend his confinement violated the Uniform Criminal Extradition Act, 42 Pa.C.S.A. §§ 9136, 9138; and, two, that the Commonwealth failed to establish that the defendant was the person sought by New York for extradition. We affirm.

On November 5, 1979, the defendant was imprisoned in Bradford County in lieu of $10,000 bail on charges of rape, involuntary deviate sexual intercourse, indecent assault, and terroristic threats. Sometime before December 19, a detainer from New York was lodged against him. This detainer is [291 Pa.Super. 212] dated November 16, 1979 by the New York authorities, but the date that it was received by the Bradford County authorities does not appear on the record. On December 19 the Pennsylvania charges which were pending against the defendant were "dismissed by the district attorney" before the preliminary hearing on those charges was to be held.

On December 20 the defendant filed a petition for a writ of habeas corpus; and the lower court issued the writ and ordered a hearing for the next day. Later on December 20 based upon the detainer a complaint was filed charging the defendant with being a fugitive from justice. A preliminary arraignment was held that same day and in lieu of bail the defendant was held in confinement.

At the habeas corpus hearing on December 21 the defendant contended that he was illegally confined from the time the local charges had been dismissed on December 19 until the time the writ of habeas corpus was issued on December 20. The lower court denied the petition for a writ of habeas corpus.

On January 7, 1980 defendant filed his second petition for a writ of habeas corpus. A hearing was held on this matter on January 15, 1980. The defendant contended that in contravention of 42 Pa.C.S.A. § 9136 he was held for more than thirty days. On January 18, 1980 the Commonwealth filed a petition to continue the defendant's confinement pending receipt of the extradition paper; a hearing was held on this petition on January 21, 1980. On January 25 the lower court denied the petition for habeas corpus and granted the Commonwealth's petition to continue the defendant's confinement.

On February 8 after an extradition hearing was held and the Governor's warrant was served, the lower court ordered the defendant to be extradited. The lower court refused to stay its order, but this court granted a stay pending appeal.

Under the Uniform Criminal Extradition Act an accused may be committed to jail for up to thirty days to allow his arrest on Governor's warrant pursuant to a request [291 Pa.Super. 213] by the demanding state. 42 Pa.C.S.A. § 9136. If the accused is not arrested under the Governor's warrant within the initial thirty day period, he may be recommitted for a further period not to exceed sixty days. 42 Pa.C.S.A. § 9138. Although the statute, 42 Pa.C.S.A. § 9138, does not expressly require a hearing before an accused may be recommitted for another period of up to sixty days, our case law has imposed such a requirement. See Commonwealth

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ex rel. Colbert v. Aytch, 246 Pa.Super. 278, 369 A.2d 1321 (1976) affd. 478 Pa. 314, 386 A.2d 950 (1978); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662, 664 (1975), allocatur denied. Furthermore, even though the alleged fugitive may already be in custody on other charges, the lodging of a detainer commences the period under the Uniform Criminal Extradition Act. ¹ Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974).

Instantly the defendant argues that he should be discharged because the Commonwealth's petition to extend the defendant's confinement was not filed within thirty days of the time the detainer was lodged. The record is not clear as to when the detainer was lodged with the Bradford County authorities. The record does show that the detainer was signed by New York authorities on November 16, 1979. However, the Bradford County warden did not know the exact date it was received; he could only testify that it was received "within a very short space of time" after November 16, 1979. N.T. January 15, 1980, 2. Because of the indefinite nature of the evidence on this matter the lower court judge found that it was filed before December 19, 1979. Lower Court Order January 25, 1980. For purposes of analysis we will assume that the detainer was filed with the Bradford County authorities on November 17, 1979. Thus the initial thirty day period would elapse on December 17, 1979. By December 17, 1979 no hearing had been held to extend the defendant's confinement. However, on December 20 the defendant was arraigned and on December 21 in [291 Pa.Super. 214] response to defendant's petition for habeas corpus, a hearing was held. In our view that hearing satisfied our case law requirement that a hearing be held to recommit the defendant for a further period of up to sixty days.

Title 42 Pa.C.S.A. § 9138 provides:

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or issuing authority may discharge him or may recommit him for a further period, not to exceed 60 days, or a judge or issuing authority may again take bail for his appearance and surrender, as provided in section 9137 (relating to bail), but within a period not to exceed 60 days after the date of such new bond.

Thus under 42 Pa.C.S.A. § 9138 if an accused is not arrested under a Governor's warrant, the judge or issuing authority may discharge him, recommit him, or continue his bail.

At the habeas corpus hearing held on December 21 defense counsel was present. The hearing disclosed that the defendant had been held in jail since November 5 on local charges of rape, involuntary deviate sexual intercourse, indecent assault and terroristic threats; that these charges were dismissed on December 19; and that on December 20 defendant was arraigned on charges of being a fugitive from justice based on information which was received from New York authorities before December 19. During the hearing defense counsel moved to reduce bail.

Thus at the hearing held on December 21, the judge knew the period of time the defendant had spent in jail, the reasons for his confinement, and that he had been arraigned on a charge of being a fugitive from New York based on information received from New York. It was clear that the defendant had not yet been arrested on a Governor's warrant. Moreover, the judge considered whether to discharge the defendant, continue his confinement or reduce his bail. Because of the evidence adduced at the hearing and the judge's awareness of the available alternatives, i. e., discharge, continued confinement, and reduction of bail, we [291 Pa.Super. 215] hold that the hearing of December 21 satisfied the requirement that a hearing be held to recommit the defendant. Moreover we hold that although, as we have assumed above, the hearing may not have been held within thirty days of the time the detainer was lodged, since it was

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held at the latest within thirty-four days of the time the detainer was lodged, the defendant may not be discharged for lack of a timely hearing. We so hold because as in other...