Com. ex rel. Colcough v. Aytch

CourtSuperior Court of Pennsylvania
Citation227 Pa.Super. 527,323 A.2d 359
PartiesCOMMONWEALTH of Pennsylvania ex rel. Robert COLCOUGH v. Louis AYTCH, Superintendent, Philadelphia County Prisons.
Decision Date03 April 1974

323 A.2d 359

227 Pa.Super. 527

COMMONWEALTH of Pennsylvania ex rel. Robert COLCOUGH
Louis AYTCH, Superintendent, Philadelphia County Prisons.

Superior Court of Pennsylvania.

April 3, 1974.

Application for Allocatur Denied June 11, 1974. [323 A.2d 360]

[227 Pa.Super. 528] Robert A. Stein, Leonard Sosnov and John W. Packel, Asst. Defenders, and Vincent J. Ziccardi, Defender, Philadelphia, for appellant.

James T. Ranney, Milton M. Stein, Asst. Dist. Attys., and Arlen Specter, Dist. Atty., for appellee.


SPAETH, Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus and ordering appellant to [227 Pa.Super. 529] be extradited to New Jersey. Appellant raises several issues relating to the application of the Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, 19 P.S. § 191.1 et seq.

On July 21, 1972, at 11:30 P.M. four black men held up the Twilight Bar in Camden, New Jersey, shot and killed the bartender, and fled in a blue Ford Falcon station wagon with a Pennsylvania license plate. A witness at the scene notified the Camden police of the crime, and they notified the Philadelphia police. At about 12:40 A.M. a Philadelphia police officer spotted a car meeting the description, occupied by four black men, on Interstate Route 95 near the bridge to Camden. The officer stopped the car, but as he got out of his patrol car the car pulled away. After pursuit, the officer managed to stop the car right outside a police station. The driver had no license, so all of the occupants were ordered out of the car. Police from the station came out to help, and one of them saw a pistol on the front seat and a brown paper bag (which was later found to contain money and receipts from the Twilight Bar) on the floor. The four men were taken into the police station but refused to identify themselves. They were nevertheless identified through the use of 'mug shots' and were held. Later in the day, New Jersey officials came to Philadelphia and took the gun, the bag, and the money and receipts. The men were charged in New Jersey with murder, and their extradition was requested by the Acting Governor of New Jersey.

On August 22, 1972, the matter was listed for hearing but the Commonwealth was not ready and it was relisted for September 20. In the meantime, on September 7 the Governor of Pennsylvania reviewed New Jersey's request for extradition and authorized rendition pursuant to the Uniform Criminal Extradition Act. By September 20, however, the requisite papers had not been prepared, and the matter was continued to October [227 Pa.Super. 530] 3. On October 3 the papers had still not been prepared, and over appellant's counsel's objection and motion for discharge the matter was continued to October 10. On October 10 the Governor's warrant was presented and appellant's counsel was given nine days to file a petition for habeas corpus. Testimony on the petition was heard by The Honorable Merna B. Marshall on October 19 and 20 and a decision held under advisement. On October 26 the judge denied the petition but gave appellant five days to appeal. On October 30 appellant did appeal, and also petitioned this court for a supersedeas, which was granted.

Although the issue is raised by neither party, [1] we must always be cognizant of the extent of our jurisdiction. Under [323 A.2d 361] Section 302 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. § 211.302, the Superior Court has jurisdiction over all appeals from the Courts of Common Pleas except those within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court. One class of cases within the exclusive jurisdiction of the Supreme Court is 'felonious homicide.' 17 P.S. § 211.202(1). Since appellant is charged with felonious homicide it might seem that we should transfer his appeal to the Supreme Court. 'Felonious homicide,' however, refers to cases in which the appellant has been convicted in Pennsylvania. Since felonious homicide is so grave a crime it is appropriate that no one should stand convicted of it without the opportunity of having his conviction reviewed by the highest court. This reason does not apply where, as here, the appellant will stand trial in another State; if he is convicted there, he may seek appellate review there. So far as regards whether he is to be extradited, this court can decide that matter as well as any other.

[227 Pa.Super. 531] Appellant's first contention is that the evidence of his presence in the demanding state when the crime was committed was the fruit of an illegal arrest, and that the hearing judge erred in not allowing him to raise this issue. We do not reach the issue because we have concluded that the hearing judge was correct in holding that appellant could not raise it.

The procedural safeguards required in most criminal proceedings are irrelevant to extradition proceedings. This is because the Constitution provides that extradition is summary in nature: '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.' U.S.Const. art. IV, § 2, cl. 2.

Under the Uniform Criminal Extradition Act extradition will be ordered upon proof of four facts: (1) the subject of the extradition is a person charged with a crime in the demanding state; (2) the subject of the extradition was in the demanding state at the time of the crime; (3) the subject is a fugitive from the demand state; and (4) the requisition papers are in order. Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970); Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 252 A.2d 656 (1969); Commonwealth ex rel. Reis v. Aytch, 225 Pa.Super. 315, 310 A.2d 681 (1973); Commonwealth v. Kulp, 225 Pa.Super. 345, 310 A.2d 399 (1973).

In deciding whether these four facts have been proved, it has been consistently held that a claim of procedural impropriety in the demanding state will not be considered. Thus, on an extradition from Texas to California, an allegation that the petitioner could not get a fair trial was left to be litigated in the California courts. Watson v Montgomery, 431 F.2d 1083 (5th [227 Pa.Super. 532] Cir. 1970). An allegation that the petitioner's life would be in danger if he were returned to Mississippi to face charges of escape from prison was held irrelevant in Commonwealth ex rel. Hatton v. Dye, 373 Pa. 502, 96 A.2d 127 (1953); Accord Commonwealth ex rel. Huey v. Dye, 373 Pa. 508, 96 A.2d 129 (1953); And see Sweeney v. Woodall, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114 (1952) (alleged cruel and unusual punishment in demanding state). An unsupported allegation of an illegal arrest elsewhere was dismissed without elaboration in Brown v. Fogel, 387 F.2d 692 (4th Cir. 1967), cert. denied 390 U.S. 1045, 88 S.Ct. 1647,...

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