439 Pa. 341 | Pa. | 1970
Opinion by
On June 6, 1969, appellant Roy Osburn was taken into custody by appellee, the Sheriff of Union County, on a detainer warrant charging that he was a fugitive
Appellant does not contend that the normal statutory requirements for extradition have not been met and the record establishes that they have. Commonwealth ex rel. Kelly v. Santo, 436 Pa. 204, 206, 259 A. 2d 456 (1969); Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 211, 252 A. 2d 656 (1969). He contends, rather, that certain collateral matters relating to the delay in procuring his return to West Virginia render his extradition improper and entitle him to release from custody.
In the first place, appellant argues that his right to a speedy trial in West Virginia, guaranteed under the Sixth Amendment of the Constitution of the United States, as made applicable to the States through the Fourteenth Amendment,
Appellant next asserts that the authorities of Monongalia County, West Virginia, have refused to pay the costs and expenses of his detention in Pennsylvania and contends that such a refusal demonstrates a lack of good faith on the part of that State’s authorities such as to constitute a waiver by them of their right to extradite him. This allegation also, even if we were to assume its truth,
The only procedural defect in the extradition proceeding itself to which apellant directs our attention is the failure formally to re-arrest him on the Governor’s Warrant within thirty days of his initial arrest on the magistrate’s warrant,
Finally, appellant contends that West Virginia has waived its right now to seek his extradition. He bases this contention on the following facts. His alleged escape from a prison detail occurred on June 24, 1968. Approximately one month later he was apprehended in Rehoboth Beach, Delaware, on a petty larceny charge. He was identified as a fugitive from West Virginia and, when he appeared before a Delaware magistrate, he agreed to waive extradition and return to West Virginia. Appellant testified at the hearing below that written notice of his agreement to return was then mailed to West Virginia. Whether or not this uncorroborated statement was true, during appellant’s subsequent twenty day incarceration in Delaware on the petty larceny charge the West Virginia authorities apparently made no effort to take him into custody.
At the expiration of the Delaware sentence, appellant was arrested on a federal detainer for violation of the Dyer Act (transporting a stolen automobile in interstate commerce) and arraigned before a United States Commissioner in Wilmington, Delaware. At that time he waived grand jury presentment on the federal charge and was transferred by the federal authorities to Pennsylvania where he was incarcerated pending trial.
On December 9, 1968, appellant was tried and convicted on the Dyer Act charge in the District Court of the United Staes for the Middle District of Pennsylvania and sentenced to the Federal Northeastern Penitentiary at Lewisburg, Union County, Pennsylvania, for one year and one day. It was upon his release from this incarceration that he was taken into the custody of the appellee Sheriff.
The right of a state to have a fugitive from its justice returned is guaranteed by the United States Constitution.
Here the indicia of waiver are even fewer than they were in the Bonomo case. West Virginia has never had custody of appellant since appellant committed the crime for which extradition is being sought; it had only the briefest period while he was detained in Delaware to acquire such custody. Moreover, the evidence presented here that West Virginia had notice of this fleeting opportunity to secure custody of appellant is far from convincing. The court below made no finding that West Virginia had notice; it merely noted that appellant had so testified. The standard to be used in determining whether or not there has been a waiver of a federal constitutional right was enunciated by the United States Supreme Court in Brookhart v. Janis, 384 U.S. 1, 4, 16 L. Ed. 2d 314, 317, 86 S. Ct. 1245
Orders affirmed.
See Klopfer v. North Carolina, 386 U.S. 213, 18 L. Ed. 2d 1 (1967).
The only evidence adduced by appellant in support of his allegation of refusal by West Virginia to pay costs and expenses are three documents attached to his supplemental petition: (1) a statement submitted by the Sheriff of Union County of costs and expenses totaling $994.25; (2) a copy of a letter from the Union County Solicitor to the Monongalia County, West Virginia, Sheriff’s Department forwarding this statement and informing the addressee that the bill was required to be paid within ten days; and (3) a copy of a letter from the Sheriff and Treasurer of Monongalia County to the Prosecuting Attorney of that County stating that, as appellant was being held at the request of the Prosecuting Attorney’s office, the Sheriff could not authorize or request payment of the bill. The letters are dated September 10 and 16, 1969, respectively; nothing in the record indicates what has happened since the latter dates. The court below made no specific finding on this issue. We would not construe this correspondence as establishing a refusal by West Virginia authorities to pay these costs and expenses.
Appellant has brought to our attention no case in which a dispute of this type has been held a proper basis for release of the subject of the extradition and our research has revealed none. In fact, in the passage cited to us from the case which appellant believes is most closely in point, the United States Supreme Court expressed a view similar to our present holding: “It is sufficient now to say that the warning given to the Governor of Missouri that Mississippi would not be responsible for any expense attending the arrest and delivery of the aUeged fugitive was a matter for the consideration of the Governor of the former State when he received the official demand for the arrest and delivery of the appellant as a fugitive from justice and a copy of the indictment against Marbles, certified as authentic. It was not a matter that could legally affect the inquiry before the Circuit Court on habeas corpus, whether the requisition . . . were in substantial conformity with the Constitution and the laws of the United States, and, therefore, not in any legal sense hostile to the liberty of the accused.” Marbles v. Creecy, 215 U.S. 63, 69, 54 L. Ed. 92, 30 S. Ct. 32 (1909). (Emphasis supplied.)
The day foUowing his initial arrest by appellee on the detainer warrant, appellant was re-arrested on a warrant issued by a Union County magistrate on information supplied by a justice of the peace of Morgantown, West Virginia, in accordance with section 13 of the Uniform Criminal Extradition Act, 19 P.S. §191.13.
Article IV, Section. 2 provides: “A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”