Com. ex rel. McGowan v. Aytch

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; JACOBS
• Citation: 233 Pa.Super. 66,334 A.2d 750
• Decision Date: 31 March 1975
• Parties: COMMONWEALTH ex rel. Robert McGOWAN, Appellant, v. Louis AYTCH, Superintendent, Philadelphia County Prisons, (two cases).

Page 750

334 A.2d 750 233 Pa.Super. 66 COMMONWEALTH ex rel. Robert McGOWAN, Appellant,
v.
Louis AYTCH, Superintendent, Philadelphia County Prisons, (two cases). Superior Court of Pennsylvania. March 31, 1975.

Page 751

[233 Pa.Super. 68] Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Karl K. Lunkenheimer, Asst. Dist. Atty., Philadelphia, for appellant in No. 820 and appellee in No. 1120.

Robert F. Simone, Philadelphia, for appellant in No. 1120 and appellee in 820.

[233 Pa.Super. 67] Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

[233 Pa.Super. 68] JACOBS, Judge:

Robert McGowan (hereinafter Appellant) was arrested in Philadelphia as a fugitive from the State of New Jersey. A Governor's warrant subsequently was lodged pursuant to the Uniform Criminal Extradition Act, ¹ and the appellant filed a petition seeking habeas corpus relief in the court below. The court by order dated March 12, 1974, granted relief and denied extradition because the extradition documents failed to include either a warrant or a copy of a judgment of conviction or sentence as required by the Act. See 19 P.S. § 191.3 (1964). Shortly thereafter the Commonwealth filed a petition for reconsideration of the order denying extradition[233 Pa.Super. 69] and averred that the extradition papers which had been received into evidence at the hearing did include a warrant of arrest which had inadvertently escaped the attention of the assistant district attorney and the court because it had been stapled to the reverse side of a blue backer. The court verified the existence of the warrant and on May 20, 1974, entered a new order denying relief and granting extradition.

The appellant appealed the second order and the Commonwealth took a protective

Page 752

appeal from the prior order. Both appeals were consolidated before this Court.

The appellant raises two main arguments: first, that the Commonwealth failed to produce sufficient evidence of his identity as the individual charged in the demanding state; and second, that the Commonwealth failed to show that he was present in the demanding state at the time of the commission of the crime. We find no merit in either of these contentions; and affirm the order of May 20, 1974.

Extradition will be ordered if (1) the subject of the extradition is charged with a crime in the demanding state; (2) the subject of extradition is a fugitive from the demanding state; (3) the subject of the extradition was present in the demanding state at the time of the commission of the crime; 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. Colcough v. Aytch, 227 Pa.Super. 527, 323 A.2d 359 (1974). Necessarily underlying these proofs is the Commonwealth's burden to establish that the person being extradited is the person demanded. Commonwealth ex rel. Walker v....