OPINION BY MR. JUSTICE ROBERTS, October 12, 1971:
Appellant raises two issues on these appeals: (1) whether the delay in appellant's not being brought to trial within the 180 days provided in the Agreement on Detainers, Act of September 8, 1959, P. L. 829, 19 P. S. § 1431 et seq., operates automatically to divest the court of jurisdiction over this defendant; and (2) whether plea bargaining is a form of request for continuance for good cause shown. We must also decide whether appellant's subsequent plea of guilty was voluntary.
No issue is before us as to whether the guilty plea constitutes a waiver of defendant's right to challenge this issue.
The pertinent factual background is as follows. Appellant was serving a sentence in the New Jersey prison system when a Pennsylvania warrant issued charging him with murder in connection with the execution-type slaying of one Richard Johnson by five individuals in a secluded area of Fairmount Park in Philadelphia.
Appellant filed a request for the disposition of the warrant pursuant to the Agreement on Detainers on July 14, 1969. On July 17, 1969, the Philadelphia prosecuting authorities accepted temporary custody of appellant presumably with a view to proceeding to trial. Appellant received a preliminary hearing on November 12, 1969, and was indicted for murder and conspiracy on December 9, 1969.
Extensive plea bargaining occurred on appellant's behalf. On May 13, 1970, appellant's counsel filed three petitions: a motion to suppress a confession, an application for the appointment of an investigator, and a petition to have bail set. On June 2, 1970, the application for an investigator was granted and the other petitions continued.
On July 15, 1970, appellant filed a petition for writ of habeas corpus, asserting 180 days had passed since he had requested disposition of his case. A hearing was held on August 13, 1970, and the court, ruling that a continuance had been granted for good cause shown at appellant's request, dismissed the petition on August 17, 1970.
On September 9, 1970, appellant pleaded guilty to murder generally. The Commonwealth certified the case rose no higher than second degree. An extensive on-the-record colloquy occurred. On November 23, 1970, appellant received a sentence of from two to five years in consideration for his cooperating in testifying at the trial of one of his co-conspirators.
Appellant has appealed both from the dismissal of his habeas corpus petition and the judgment of sentence, although the latter appeal is not strenuously pressed. Each will be discussed in turn.
The pertinent provisions of the Agreement on Detainers reads as follows:
"Article III
"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused 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: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. . . .
"Article V
"(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order, dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." Act of September 8, 1959, supra, 19 P. S. § 1431.
The determinative issue before the habeas court was whether appellant had, in fact, requested and received a continuance for good cause shown. The hearing court ruled such a request had been made, and we may not disturb this finding unless it is clearly unsupported by the evidence.
The trial court file has been lost, and the habeas court based its finding on testimony given by the assistant district attorney and defense counsel. Although this record does not disclose precisely when delivery to the appropriate prosecuting officer actually occurred, presumably it was within a few days after July 14, 1969. Accordingly, the 180-day period expired a few days subsequent to January 10, 1970.
At the habeas corpus hearing the assistant district attorney testified that on January 2, 1970, appellant's counsel appeared before the court and made an application for a continuance. While the witness was not absolutely positive the motion had been made on that exact date, a finding to that effect was certainly permissible from the testimony.
Appellant's counsel testified at the hearing that extensive plea bargaining had occurred prior to January, 1970. He also stated that in all probability he informed the assistant district attorney on January 2, 1970, that he might file an application to suppress a confession, which was in actuality filed on May 13, 1970, when, according to counsel, plea bargaining attempts were faltering.
We believe the hearing court's disposition of this issue possesses sufficient support in the record. Appellant cannot lull the prosecution into plea bargaining attempts only to file for a discharge after the expiration of 180 days. Likewise, the Commonwealth cannot delay trial indefinitely while half-hearted and ephemeral plea bargaining occurs. However, in the present case, it appears the plea bargaining was in good faith and without purposeful delay. Furthermore, testimony was elicited that appellant had, in fact, requested a continuance. While in other cases it is to be expected that the motion for a continuance and the moving party will appear as a matter of record to preclude the difficult issue of fact presented to the habeas court, we are unwilling to find any error on the record before us.
The present case is thus wholly distinct from Commonwealth v. Bell, 442 Pa. 566, 276 A.2d 834 (1971) where under a similar statute we ruled the defendant must be discharged after the passage of 180 days, for there the defendant had in no way been responsible for the delay in his being brought to trial.
As to the appeal from the judgment of sentence, only the legality of the sentence and the voluntariness of the plea can be raised in this case. See, e.g., Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970); Commonwealth v. Culpepper, 434 Pa. 15, 252 A.2d 624 (1969). Appellant's sentence of from two to five years was clearly permissible. Likewise, the on-the-record colloquy at the time he entered his plea reveals it was unquestionably voluntary and intelligent.fn_ The requisites of due process and Rule 319 of the Rules of Criminal Procedure were satisfied.
Accordingly, the order of the Court of Common Pleas of Philadelphia dismissing the habeas corpus petition and the judgment of sentence are affirmed.