Filed: Sep. 18, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 9-18-2007 Sands v. McCormick Precedential or Non-Precedential: Precedential Docket No. 06-3281 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Sands v. McCormick" (2007). 2007 Decisions. Paper 334. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/334 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 9-18-2007 Sands v. McCormick Precedential or Non-Precedential: Precedential Docket No. 06-3281 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Sands v. McCormick" (2007). 2007 Decisions. Paper 334. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/334 This decision is brought to you for free and open access by the Opinions of the United S..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-18-2007
Sands v. McCormick
Precedential or Non-Precedential: Precedential
Docket No. 06-3281
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Sands v. McCormick" (2007). 2007 Decisions. Paper 334.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/334
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.06-3281
CYNTHIA SANDS,
Appellant
vs.
ROBERT McCORMICK, Sergeant, Berwick Police Department;
GARY E. NORTON, District Attorney of Columbia County, Pennsylvania
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 06-cv-00158 )
District Judge: Honorable James F. McClure, Jr.
____________
Argued July 10, 2007
Before: SLOVITER, WEIS and ROTH, Circuit Judges.
Filed: September 18, 2007
____________
DAVID B. DOWLING, ESQUIRE (ARGUED)
James J. Jarecki, Esquire
RHOADS & SINON, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108
Attorneys for Appellant Cynthia Sands
1
CHESTER C. CORSE, JR., ATTORNEY (ARGUED)
Ten Westwood Road
P.O. Box 1190
Pottsville, PA 17901
Attorney for Appellee Gary E. Norton
DAVID J. MacMAIN, ESQUIRE
TIMOTHY J. KEPNER, ESQUIRE
MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP
123 South Board Street
Philadelphia, PA 191099
Attorneys for Appellee Robert McCormick
______________
OPINION
WEIS, Circuit Judge.
In this appeal we conclude that a district attorney’s use of the extradition
process rather than accepting an out-of-state accused’s offer to return for a preliminary
hearing when scheduled did not establish a constitutional violation. We also decide that a
police officer’s affidavit of probable cause was not deficient because the statute of
limitations had expired before a criminal complaint was filed. Moreover, we conclude
that portions of a transcript of a preliminary hearing may be considered in connection
with the defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). We are in agreement with the District Court that judgment should be entered in
favor of the police officer and district attorney in claims brought under 42 U.S.C. § 1983
and state tort law.
2
In December of 2003, a jury awarded substantial damages to Carolyn Sands
following a trial that concerned a contractual dispute over the 1997 sale of a business to
Sherry Wagner and others. One of the issues in that case was whether Sands had
improperly withdrawn funds from a company bank account after the sale. In March of
2004, a new trial was granted. The trial court wrote that “Sands illegally withdrew at
least $10,000 before the closing from the bank account of the corporation, and after the
closing illegally appropriated the entire bank account for her own use.”
Following the grant of a new trial, Wagner contacted defendant Sergeant
Robert McCormick of the Berwick Police Department in Columbia County,
Pennsylvania. She demanded that he file criminal charges against Sands for forgery and
theft. On April 26, 2004, McCormick filed a criminal complaint against Sands before the
state district magistrate1 charging her with 14 counts of forgery and 16 counts of theft by
deception. He included in the complaint an affidavit of probable cause that described
specific information he received from Wagner, including some bank records that he had
examined, and also directly quoted the trial court’s opinion that granted the new trial.
On May 5, 2004, the magistrate issued a warrant for Sands’ arrest listing an
1
These members of the Pennsylvania minor judiciary were called “district
justices” prior to January 31, 2005, but are now designated as “magisterial district
judges.” See Act 2004-07, Nov. 30, 2004, P.L. 1618 (effective Jan. 31, 2005). To avoid
confusion here we will refer to these individuals as “magistrates.” We will refer to the
court that decided the contract dispute as the “trial court.” We will designate the court
which heard the case before us as “the District Court.”
3
address of 5499 Freeport Lane, Naples, Florida. On June 29, 2004, the warrant was
reissued with a notation “declared a fugitive.” On July 9, 2004, Sands was arrested at her
home in Florida and taken to the county jail where she was detained until released on bail
on July 10, 2004.
Sands alleges that upon her release she telephoned defendant Gary E.
Norton, District Attorney of Columbia County, and told him that once a hearing date was
set she would voluntarily return to Pennsylvania when requested. It appears that on
August 3, 2004, in a letter to the magistrate, Attorney Kim Hill advised that he
represented Sands and asked that he be notified of the date of the preliminary hearing.
On October 18, 2004, District Attorney Norton signed a petition for a
Governor’s Warrant requesting Sands’ extradition that listed an address at 1855 Ivory
Cane Point, Naples, Florida. The application stated that Sands was a fugitive from
Pennsylvania and that any delay in her prosecution occurred because the “[p]ersons
whereabout [sic] was unknown.”
On November 10, 2004, she was again arrested at her Florida home and
remained in a county jail there until November 24 when she was transported to
Pennsylvania in handcuffs and shackles. She was released on bail in Pennsylvania on her
arrival there. Sands alleges that District Attorney Norton knew that she had retained
attorneys in Pennsylvania and Florida before he applied for the Governor’s Warrant and
that defendants did not inform her of the date of her hearing before the second arrest.
A preliminary hearing was held before the magistrate on December 6, 2004.
4
After hearing testimony from Wagner, the magistrate ordered Sands to answer the charges
in the Court of Common Pleas of Columbia County. Sands’ counsel then asked the court
to quash the information because the relevant statutes of limitations had expired. On
March 14, 2005, the Court of Common Pleas granted the motion and dismissed the
charges.
Sands then filed this civil rights action in the United States District Court
for the Middle District of Pennsylvania claiming damages under 42 U.S.C. § 1983 for
false arrest and false imprisonment against Sergeant McCormick and for false arrest
against District Attorney Norton. She also asserted state law claims of malicious
prosecution, abuse of civil process,2 and intentional infliction of emotional distress
against both defendants.
Sands based the claims against Sergeant McCormick primarily on the
allegations that he filed the Complaint and Affidavit of Probable Cause knowing that the
statute of limitations had expired on the charges and that they were based on insufficient
facts. She also alleged that Sergeant McCormick requested the Governor’s Warrant
knowing that Sands was not a fugitive and refused to take steps to have it rescinded.
The District Court dismissed the § 1983 claims for false arrest and false
imprisonment and the state law claim for malicious prosecution against Sergeant
McCormick because he had probable cause to file the criminal complaint. The District
2
Although labeled civil process, the District Court construed the claim as
one of abuse of criminal process.
5
Court found that Sergeant McCormick properly relied on the information he received
from Wagner, including the bank records and the comments in the order granting a new
trial in the contractual dispute. The District Court observed that the running of the
limitations period was not relevant to the existence of probable cause and did not become
an issue until raised as a defense in Sands’ motion to dismiss the charges in the Court of
Common Pleas.
The District Court also dismissed the state law claims against Sergeant
McCormick for malicious prosecution, abuse of process, and intentional infliction of
emotional distress on the ground that he was entitled to immunity under the Pennsylvania
Political Subdivision Tort Claims Act (“Pa. Tort Claims Act”), 42 Pa. Cons. Stat. § 8541
et seq., since he acted in his official capacity and in good faith.
Sands’ assertions against the district attorney were similar to those against
Sergeant McCormick, but were not identical. Sands based her claims against the district
attorney primarily on allegations that in his administrative capacity he authorized Sands’
arrest, then signed the criminal information knowing that the statute of limitations had
expired and that the charges lacked probable cause. She also alleged that he requested
and refused to rescind the Governor’s Warrant knowing that Sands was not a fugitive.
The District Court rejected the § 1983 claim for false arrest against the
district attorney because he was entitled to absolute prosecutorial immunity for his
actions. The District Court declined to accept Sands’ characterization of Norton’s
activities as administrative, concluding that they were intimately connected with the
6
judicial phase of the prosecution.
As to the state tort claims, the District Court held that because Norton acted
in his official capacity as a prosecutor and acted in good faith based on probable cause, he
was immune under the Pa. Tort Claims Act. Moreover, the Court held that the malicious
prosecution claim lacked merit because the district attorney did not initiate the process,
the abuse of process claim failed because Sands did not properly allege a perversion of
process, and the intentional infliction of emotional distress claim was invalid because the
district attorney’s conduct was not extreme and outrageous. Therefore, the state law
claims against the district attorney were dismissed.
On appeal, Sands raises three principal arguments:
1. Sergeant McCormick did not have probable cause to arrest Sands
because he was aware that the statute of limitations had expired.
2. The district attorney’s failure to timely schedule a hearing and his false
statements in the application for the Governor’s Warrant despite Sands’ offer to return to
Pennsylvania once he advised her of the date of the hearing were administrative actions
not protected by absolute immunity.
3. The District Court improperly relied on documents outside the complaint
and its exhibits in ruling on the Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss.
A.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review de
7
novo a district court's grant of a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Vallies v. Sky Bank, 432 F.3d 493, 494 (3d
Cir. 2006). “In evaluating the propriety of the dismissal, we accept all factual allegations
as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002).
Nonetheless, “a court need not credit a plaintiff’s ‘bald assertions’ or ‘legal conclusions’
when deciding a motion to dismiss.” Morse v. Lower Merion School Dist.,
132 F.3d 902,
906 (3d Cir. 1997) (citing In re: Burlington Coat Factory Securities Litigation,
114 F.3d
1410, 1429-30 (3d Cir. 1997)).
B.
We first address Sands’ contention that the District Court erred in referring
to the following two documents attached to the defendants’ motions to dismiss: 1) the
March 29, 2004 trial court order granting a new trial in the contract action and 2) the
transcript of the preliminary hearing in December of 2004. She asserts that by doing so
the District Court converted the defendants’ motions into requests for summary judgment
without giving her notice or an opportunity to respond.3
3
Federal Rule of Civil Procedure 12(b) provides that if, on a 12(b)(6)
motion to dismiss,
“matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given reasonable
8
Generally, in ruling on a motion to dismiss, a district court relies on the
complaint, attached exhibits, and matters of public record. Pension Benefit Guar. Corp.
v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
In Southern Cross Overseas Agency v. Wah Kwong Shipping Group Ltd.,
181 F.3d 410 (3d Cir. 1999), we noted that judicial proceedings constitute public records
and that courts may take judicial notice of another court’s opinions.
Id. at 426; see also
Burlington Coat
Factory, 114 F.3d at 1426 (courts can consider documents “integral to or
explicitly relied upon in the complaint” (quoting Shaw v. Digital Equip. Corp.,
82 F.3d
1194, 1220 (1st Cir. 1996))) (emphasis omitted). We explained that a court may take
judicial notice of another court's opinion to use it as proof that evidence existed to put a
party on notice of the facts underlying a claim. Southern
Cross, 181 F.3d at 428.
We have no difficulty concluding that the District Court properly
considered the challenged documents when it found that there was probable cause to file
the charges because Sergeant McCormick knew of the trial court order. In reaching this
conclusion, it was not necessary to determine the truth of the trial courts’s comments that
Sands’ actions were illegal. It was enough that Sergeant McCormick took the opinion
into account to some extent in finding probable cause.
Likewise, the transcript of the preliminary hearing in December 2004 was a
opportunity to present all material made pertinent to such a motion by Rule
56.”
9
public document and had a bearing on the controversy. Wagner’s detailed testimony of
Sands’ actions with respect to the bank account explained the facts underlying
McCormick’s affidavit of probable cause. The district judge cited the hearing to show
that Sands was required to answer to the charges in the Court of Common Pleas.
Moreover, Sands should not have been surprised by the inclusion of the preliminary
hearing transcript. In his motion to dismiss in the District Court, Sergeant McCormick
referred to the transcript and argued that the document should be considered according to
Pension Benefit, 998 F.2d at 1196. Sands merely responded by briefly noting her
objection to the additional evidence included by Sergeant McCormick and did not
elaborate on her position. We do not find merit in Sands’ claims that the District Court
erred in considering the transcript of the hearing and the opinion in the contractual
dispute.
C.
The principal claims against Sergeant McCormick are that there was no
probable cause to apply for the arrest warrant and that he wrongfully participated in the
issuance of the Governor’s Warrant. Sands does not focus on the District Court’s
conclusion that Sergeant McCormick had sufficient evidence to believe that she
committed the offenses. Instead, she argues that Sergeant McCormick did not have
probable cause in the sense that he knew that the statute of limitations had expired.
Sands’ argument is based on the faulty premise that the statute of
limitations is a relevant consideration at the time a police officer files charges. The
10
statute of limitations is an affirmative defense that is to be ruled upon by a court of
competent jurisdiction.
Sands would place far more responsibility on police officers than is
required by their calling. To begin with, the application of the limitations period is not a
clear cut matter in criminal prosecutions. In some circumstances tolling is applicable. 42
Pa. Cons. Stat. § 5554 provides that the statute of limitations may be extended in certain
circumstances, including “when the accused is continuously absent from the
Commonwealth . . ..” 42 Pa. Const. Stat. § 5554(1). Moreover, late discovery of an
offense may allow for longer limitations periods in crimes involving fraud. See 42 Pa.
Cons. Stat. § 5552(c) (providing that even if the statute of limitations has expired, “a
prosecution may nevertheless be commenced for: (1) Any offense a material element of
which is either fraud or a breach of fiduciary obligation within one year after discovery of
the offense by an aggrieved party. . ..”). The mere passage of time since the commission
of an offense does not warrant an automatic application of the statute of limitations in a
criminal proceeding.
In Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995), the Court of
Appeals for the Eleventh Circuit held,
“police officers have no responsibility to determine the
viability of a statute of limitations defense when executing a
valid arrest warrant. The existence of a statute of limitations
bar is a legal question that is appropriately evaluated by the
district attorney or by a court after a prosecution is begun . . ..
[W]hether a valid statute of limitations defense exists is not a
cut and dry matter.”
11
Id. at 1207-08. See also Williams v. City of Albany,
936 F.2d 1256, 1260 (11th Cir.
1991). Although Sands’ claims are based on the presumed knowledge of Sergeant
McCormick at the time he presented the affidavit of probable cause, we think the
rationale of Pickens applies to justify his action.
Sands relies on Lee v. Miholich, 1987 WL 11905 (E.D. Pa. 1987), where
the court denied summary judgment in favor of a police officer because there “was no
evidence to suggest that a reasonably competent police officer would prosecute with the
awareness that the charges were barred by the statute of limitations.”
Id. at *3. We do
not agree with that opinion’s characterization of a police officer’s responsibility. A police
officer has limited training in the law and requiring him to explore the ramifications of the
statute of limitations affirmative defense is too heavy a burden.
We note that the dates of the offenses were disclosed in the affidavit of
probable cause that was submitted to the magistrate, who may be expected to have more
knowledge of the statute of limitations than a police officer. There is no indication that
the magistrate had any hesitancy about issuing the arrest warrant.
The Court of Common Pleas’ decision to quash the information on statute
of limitations grounds does not adversely reflect on Sergeant McCormick’s application
for the arrest warrant. At that early point, the status of the limitations defense was
undetermined and open for further consideration.
In short, we conclude that the District Court properly dismissed the claims
12
under § 1983 against Sergeant McCormick because he had probable cause for his actions.
We agree that the District Court correctly dismissed the state claims against Sergeant
McCormick for malicious prosecution, abuse of process, and intentional infliction of
emotional distress because he was immune from suit under the Pa. Tort Claims Act. See
42 Pa. Cons. Stat. § 8550; see also Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006).
We will therefore affirm the judgment in favor of Sergeant McCormick.
D.
On appeal, Sands contends that the district attorney was not entitled to
immunity because he failed to schedule a preliminary hearing and applied for a
Governor’s Warrant for the second arrest. She contends that his actions were
administrative in nature and hence absolute immunity is not applicable.
We need not reach the question of whether the district attorney’s actions fall
within the scope of qualified immunity, however, because Sands has not alleged facts that
amount to a constitutional violation. In Saucier v. Katz, 533 U.S. 194 (2001), the
Supreme Court decided that before ruling on immunity in § 1983 cases, courts should first
determine whether a constitutional violation has been alleged.
Id. at 201. We must
decide preliminarily, therefore, whether the claims that the district attorney caused illegal
arrests and violated Sands’ due process rights are valid. This determination requires a
reference to the post-arrest process and the district attorney’s role.
In Pennsylvania, a preliminary hearing to address the validity of charges
filed is not scheduled until the defendant appears for an arraignment before a magistrate
13
in the judicial district where the warrant was issued. Pa. R. Crim. P. 540(F). At that
arraignment, the magistrate is required to inform the defendant of the charges, her right to
counsel, her right to bail where appropriate, and her right to a preliminary hearing. Pa. R.
Crim. P. 540(B)-(F).
At the arraignment, unless a represented defendant waives her right to a
preliminary hearing, the magistrate shall “fix a day and hour for a preliminary hearing
which shall not be less than 3 nor more than 10 days after the preliminary arraignment”
and “give the defendant notice, orally and in writing.” Pa. R. Crim. P. 540(F)(1)-(2). The
time restrictions on the date of the preliminary hearing may be altered at the request of the
parties. Pa. R. Crim. P. 540. (F)(1)(a)-(b). A magistrate in the district that issued the
warrant, therefore, and not a district attorney, is responsible for scheduling and giving
notice of the preliminary hearing.
District attorneys do not have any involvement in scheduling the
preliminary arraignment. In a case where a defendant is arrested in the judicial district
where the warrant was issued, she must be provided a preliminary arraignment by the
magistrate without unnecessary delay. Pa. R. Crim. P. 516(A).4
When arrested in another district, she must be taken without unnecessary
4
See Commonwealth v. Dreuitt, 321 A.2d 614 (Pa. 1974) (time necessary
to transport defendant from place of arrest is not part of calculation of unnecessary delay
between arrest and arraignment, where defendant was advised of right to counsel and of
charges against him at place of arrest) (O'Brien, J., announcing Opinion of the Court,
joined by Eagen and Pomeroy, J.).
14
delay to a magistrate in the district of her arrest and granted an opportunity to post bail.
Pa. R. Crim. P. 517(A). If the defendant posts bail, the magistrate must release her on the
condition that she appear for the preliminary arraignment before a magistrate in the
district that issued the warrant on a specific date within ten days. Pa. R. Crim. P. 517(B).
If she does not appear at the set time, a magistrate in the district that issued the warrant
must forfeit the bail. Pa. R. Crim. P. 517(E). If she is then arrested outside of that
district, she is not entitled to post bail and must be taken directly before the magistrate in
the district that issued the warrant for her preliminary arraignment. Id.
In Pennsylvania, the responsibility for arranging the times for the
preliminary arraignment, as well as the preliminary hearing, and giving notice rests not on
district attorneys, but on magistrates. It is the minor judiciary that controls those
proceedings.
In this case, Sands was initially arrested outside of Pennsylvania and her
arrest and return to Pennsylvania was governed by extradition statutes in Florida and
Pennsylvania. The extradition procedures are virtually identical because both states
adopted the Uniform Criminal Extradition Act. See 42 Pa. Cons. Stat. § 9121 et seq.; Fla.
Stat. § 941.01 et seq. The statutes establish a procedure through which a district attorney
can file an application with the governor of his state, who then requests the governor of
the other state to extradite a defendant who has fled to the other state. See 42 Pa. Cons.
Stat. §§ 9143-9144; Fla. Stat. §§ 941.22-941.23.
The statutes also provide a separate process by which a defendant who has
15
fled to another state can be arrested there before an actual request for extradition. See 42
Pa. Const. Stat. § 9134; Fla. Stat. § 941.13. Using this process, a judge in Florida can
issue a warrant for the arrest of a person there based on credible information that the
individual has been charged in Pennsylvania with the commission of a crime and “fled”
from justice. Fla. Stat. § 941.13.
After the arrest, the defendant must be brought before a Florida judge, Fla.
Stat. § 941.15, who may grant bail or jail the individual for such a time “as will enable the
arrest of the accused to be made under a warrant of the Governor on a requisition of the
executive authority of the state having jurisdiction of the offense.” Fla. Stat. § 941.15.
The person may be released on bail “conditioned for the prisoner's appearance before . . .
[the judge] at a time specified in such bond, and for the prisoner's surrender, to be arrested
upon the warrant of the Governor of this state.” Fla. Stat. § 941.16.
Sands was initially arrested in Florida and released on bail. The district
attorney could force her to return to Pennsylvania only through extradition. To avoid that
process, Sands had to return on her own to Pennsylvania. When she did not return, she
was extradited.
Sands has not pointed to any law that required Norton to provide her with
an alternative to extradition. Nor was the district attorney bound to accept Sands’ offer to
return voluntarily. Significantly, she does not allege that the district attorney agreed to
notify her of the hearing. Her complaint states that “Sands told Norton that, once a
hearing date was set, she would voluntarily and freely return to Pennsylvania when
16
requested.”
Sands’ offer to return to Pennsylvania when the hearing was scheduled did
not somehow put on the district attorney the burden of notifying her of the date. Sands’
offer was made to the wrong party. Her attorney asserted at the preliminary hearing that
he had communicated with the magistrate, but for some reason the case apparently “fell
between the cracks” and a hearing that might have taken place in May did not occur until
December. Even if the district attorney could have arranged with defense counsel for a
less intrusive method of returning Sands to Pennsylvania, there is nothing in the record to
show that he knew who represented her. Although she had criminal representation before
the Governor’s Warrant was issued, there is no evidence that either the magistrate or
defense counsel notified the district attorney of the identity of Sands’ lawyer.
It seems likely that Attorney Kim Hill accurately summed up the reason for
the problem here. After stating that he had sent a letter to the magistrate in August, Mr.
Hill said, “[U]nfortunately, there was some miscommunication and Ms. Sands . . . she
was never informed of a hearing, but she was still picked up on a warrant and I’m still not
sure how that happened.”
Sands has not stated a constitutional claim against the district attorney for
failure to notify her of a preliminary hearing, a duty that Pennsylvania law assigned to the
magistrate.
Sands also contends that the district attorney included false information in
the application for the Governor’s Warrant for extradition. Specifically, she points to the
17
statements that she was a fugitive and her whereabouts were unknown.
Under Pennsylvania law, the application for a Governor’s Warrant may be
made only by a district attorney.5 The application that the district attorney filed is a form
document that includes information required by statute. 42 Pa. Con. Stat. § 9144(a). The
form recites that Sands “is now in 1855 Ivory Cane Point Naples, State of Florida, which
belief is founded on information from Berwick Police Dept & Sherry Wagner.” This is a
different address from that in the original warrant.
The document also states that Sands was in the County of Columbia “at the
time of the commission of said offense and fled the jurisdiction of the Commonwealth
before arrest could be made . . . and is a fugitive from the justice of this Commonwealth.”
In addition, the form states that any delay that occurred in prosecution or in the
application for extradition “was unavoidable for the following reason(s): Persons
whereabout [sic] were unknown.”
Sands complains that the last statement was false because the district
attorney knew where she lived. A careful reading of the application, however, reveals
that the statement explained the delay in prosecution, rather than the plaintiff’s current
address. It is obvious from the new address that Sands had changed her residence
between the time of the original warrant and the date when the Governor’s Warrant was
5
42 Pa. Con. Stat. § 9144(a) (providing that “the prosecuting attorney shall
present to the Governor his written application for a requisition for the return of the
person charged”).
18
issued.
Sands also contends that the district attorney falsely described her as a
“fugitive.” Although it is understandable that she may be perturbed by being so
characterized, the terminology in the warrant is legally correct. In Commonwealth ex rel.
Smalley v. Aytch, 371 A.2d 1018 (Pa. Super. 1977), the Superior Court of Pennsylvania
said in reviewing an extradition case,
“If, having been within a state, [a defendant] is accused of
having committed while there that which by its laws
constitutes a crime, and, when he is sought to be subjected to
criminal proceeding therefor, he has left its jurisdiction and is
found within another state he is a fugitive from justice.
It is not important whether the accused leaves the state to
avoid prosecution or not. His motive does not affect his
relation to the law.”
Id. at 1021 (quoting Commonwealth v. Hare,
36 Pa. Super. 125, 130-31 (1908)).
Insofar as the record shows, Sands was in Florida and could only be forced
to return to Pennsylvania through the extradition process. It follows that the references to
the term “fugitive” in this case are not actionable.
The miscommunication here had unfortunate results. Criminal procedures
are often harsh and mistakes can be made, but that does not make the process
unconstitutional per se. Sands has failed to state a constitutional claim against District
Attorney Norton under § 1983.
Sands complains that the district attorney should not have pursued the
prosecution because as a lawyer he knew that the statute of limitations had expired. As
19
we explained earlier, the charges were based on probable cause. As with this claim and
the other state tort allegations, the district attorney’s actions were within the protection of
the Pa. Tort Claims Act. The District Court properly ruled in favor of the district attorney
on both the federal and state counts.
The judgments of the District Court will be affirmed.
20
