Com. ex rel. Berry v. Aytch

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; JACOBS; SPAETH, J., files a concurring opinion, in which HOFFMAN; SPAETH; HOFFMAN
• Citation: 385 A.2d 354,253 Pa.Super. 312
• Decision Date: 13 April 1978
• Parties: COMMONWEALTH of Pennsylvania ex rel. John F. BERRY, Appellant, v. Louis AYTCH, Superintendent Philadelphia County Prisons, Appellee.

Page 354

385 A.2d 354 253 Pa.Super. 312 COMMONWEALTH of Pennsylvania ex rel. John F. BERRY, Appellant,
v.
Louis AYTCH, Superintendent Philadelphia County Prisons, Appellee. Superior Court of Pennsylvania. Submitted March 21, 1977.
Decided April 13, 1978.

Page 355

[253 Pa.Super. 314] Barnaby Wittels, Asst. Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Asst. Dist. Attys., and F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for Commonwealth, appellee.

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

JACOBS, President Judge:

This appeal arises from the denial of appellant's petition for writ of habeas corpus in an extradition proceeding. Appellant raises four points which, he argues, make the [253 Pa.Super. 315] extradition order invalid. Even assuming that appellant's allegations have merit, all the alleged errors occurred prior to the institution of the Governor's Warrants on which the extradition order ultimately was based. Appellant does not challenge the validity of the extradition order itself. Our only concern in extradition proceedings, however, must be with the validity of the final order. Accordingly, we affirm the lower court's denial of appellant's petition for writ of habeas corpus and its entry of the extradition order.

Appellant Berry was arrested by Philadelphia police officers on November 22, 1975 and charged with being a fugitive from justice. As a basis for the charge, it was alleged that appellant was an escapee from the Burlington County, New Jersey jail. Appellant was arraigned and held in custody in lieu of bail. On December 2, 1975, Judge Ethan Allen DOTY found that defendant appeared to be the person charged with the escape and ordered him recommitted until Governor's Warrants were filed. On February 20, 1976, all local detainers against appellant were discharged and he was arrested on the basis of the Governor's Warrants. Appellant Berry filed a timely petition for writ of habeas corpus contesting extradition. A hearing on appellant's petition was held on March 11, 1976. At the hearing, it was apparent that Judge DOTY was troubled by confusing evidence and testimony as to appellant's identity. On March 24, 1977, the Commonwealth withdrew the Governor's Warrants and appellant was discharged from custody.

As appellant was leaving the courtroom following his discharge, he was again arrested by the Philadelphia police and charged with being a fugitive from justice. This time, it was alleged that appellant had committed one or more burglaries in New Jersey. Appellant was arraigned immediately after his rearrest. A "thirty-day" hearing pursuant to the Uniform Criminal Extradition Act ¹ was scheduled for April 15, 1976. It was continued until April 20 and finally held on April 28, 1976. At the hearing, Judge DOTY heard appellant's petition for writ of habeas corpus and denied [253 Pa.Super. 316] appellant's contention that his restraint had been unlawful because he did not receive a judicial hearing within thirty days of his second arrest. Appellant filed a second petition for writ of habeas corpus alleging that he had been arrested without probable cause. This petition was likewise denied.

In late June, 1976, ² the Commonwealth discharged the fugitive charges against appellant

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and lodged new Governor's Warrants. These warrants were based on allegations not that appellant was a fugitive from the burglary charges for which he was arrested on March 24, 1976, but that he was an escapee from a New Jersey jail. At an August 31 hearing, Judge DOTY determined that the Governor's Warrants were in order; appellant's petition for a writ of habeas corpus was denied and he was ordered extradited to New Jersey. This appeal followed.

It is well established that the courts of the asylum state are limited to an extremely narrow determination in extradition matters. Extradition is a constitutionally mandated process and will be ordered if the subject of the extradition (1) is charged with a crime in the demanding state, (2) is a fugitive from the demanding state, (3) was present in the demanding state at the time of the commission of the crime, and (4) if the requisition papers are in order. Commonwealth ex rel. Banks v. Hendrick,430 Pa. 575, 577, 243 A.2d 438, 439 (1968); Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 135, 228 A.2d 742, 744 (1967); Commonwealth ex rel. Smalley v. Commonwealth, 247 Pa.Super. 23, ---, 371 A.2d 1018, 1020 (1977). The only issue before the court in an extradition/habeas corpus proceeding is whether the demanding state has complied with the four criteria of the Extradition Act. Commonwealth ex rel. Colbert v. Aytch, 246 Pa.Super. 278, 282, 369 A.2d 1321, 1323 (1976).

[253 Pa.Super. 317] Appellant Berry does not challenge the findings made by the court below as to the propriety and validity of the extradition order. Instead, he raises four other bases for his appeal. First, he argues that the court erred in refusing to grant his petition for writ of habeas corpus because he had been held in custody 217 days before production of valid Governor's Warrants. Second, he alleges that his rearrest on March 24, 1976, followed by the lodging of Governor's Warrants on the same basis as those withdrawn on March 24 was unlawful. Third, appellant argues he was denied a "thirty day" hearing as mandated by law. And, fourth, he alleges that his arrest was not based on probable cause and, therefore, was violative of the Fourth and Fourteenth Amendments to the United States Constitution. Because Appellant does not contest the court's finding that the requirements of the Extradition Act have been met and because we find the other issues he raises not appropriate for review or meritless, we affirm the lower court's extradition order.

We find no errors to have occurred between appellant's initial arrest on November 22, 1975, and the discharge of the initial Governor's Warrants on March 24, 1976, so we turn to the issue of his March 24 rearrest. It is well established that the dismissal of Governor's Warrants, even with prejudice, in an extradition proceeding will not bar subsequent rearrest and a hearing on the same fugitive charges....