Com. v. Murphy

• Decision Date: 22 September 1975
• Citation: 344 A.2d 662,236 Pa.Super. 37
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Thurman MURRHY.
• Court: Pennsylvania Superior Court

Page 662

344 A.2d 662

236 Pa.Super. 37

COMMONWEALTH of Pennsylvania, Appellant, v. Thurman MURRHY.

Superior Court of Pennsylvania.

Sept. 22, 1975.

Petition for Allowance of Appeal Denied Dec. 2, 1975.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Philadelphia, for appellant.

John W. Packel, Chief, Appeals Div., submitted, Philadelphia, for appellee.

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

HOFFMAN, Judge:

This appeal is taken from an order granting the appellee's petition for a writ of habeas corpus and refusing extradition.

On July 1, 1973, the appellee was arrested in Alexandria, Virginia, by agent Thomas Morehead of the local police department, for burglaries committed in Alexandria on June 4 and June 11, 1973. The complainant identified the appellee as the perpetrator of the June 4 burglary in the presence of agent Morehead. At the Virginia preliminary hearing, agent Morehead identified the appellee as the man he arrested. Subsequent to the preliminary hearing, both burglary charges were nolle prossed. The appellee was discharged and left the jurisdiction. New evidence was discovered soon afterwards, however, and an Alexandria Grand Jury indicated the appellee on the same charges.

On September 13, 1974, the appellee was arrested in Philadelphia and was charged with being a fugitive from Virginia. A preliminary arraignment was held in Municipal Court on the fugitive charge on September 14, 1974, and a '30 day' hearing was scheduled for October 15, 1974, pursuant to §§ 191.15 and 191.17 of the Uniform Criminal Extradition Act. ¹ When the appellee appeared in court on October 15, 1974, the Commonwealth had not yet received the Governors' warrants and accompanying extradition documents. The appellee was, therefore, recommitted for an additional sixty days pursuant to § 191.17 of the Act. On November 18, 1974, the appellee was arrested on valid Governors' warrants from Pennsylvania and Virginia. Thereafter the appellee challenged his extradition by filing a petition for writ of habeas corpus. The hearing was held on December 6, 1974, and the Governors' warrants and accompanying extradition documents were introduced in evidence. In addition, agent Morehead testified that the appellee was the individual he arrested in Virginia, and that the complainant positively identified the appellee as the perpetrator of the June 4, 1973 burglary in his presense. The sole evidence introduced by the appellee was a copy of the Municipal Court transcript. The lower court denied extradition because it found that the Commonwealth had failed to prove that the appellee was present in the demanding state at the time of the crime, and that the appellee's '30 day' earing was held thirty-two days after initial confinement.

Under the Uniform Criminal Extradition Act, supra, 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 demanding state; and (4) the requisition papers are in order. Commonwealth ex rel. Coades v. Gable, 437 Pa. 533, 264 A.2d 716 (1970); Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 252 A.2d 656 (1969); Commonwealth ex rel. Colclough v. Aytch, 227 Pa.Super. 527, 323 A.2d 359 (1974). It is well-settled that when the extradition papers are in order, the allegations contained therein must be accepted as 'prima facie true.' Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 135, 228 A.2d 742, 744 (1967). See also Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523 (1962); Commonwealth ex rel. Reis v. Aytch, 225 Pa.Super. 315, 310 A.2d 681 (1973). Therefore, once the Commonwealth introduces the extradition papers, it is incumbent upon the accused to show non-presence in the demanding state at the time of the crime. See Commonwealth ex rel. Edgar v. Davis, supra.

Appellee contends that it would be unjust to require him to show non-presence because at the time he left the demanding state, there were no criminal charges pending against him, and because approximately eighteen months had elapsed since the date of the offense. It is difficult to perceive the relationship between the appellee's status and his memory. We find no reason to distinguish between the appellee's situation and that of any other alleged criminal who avoids apprehension before leaving the jurisdiction. In theory, both the alleged criminal and the appellee are presumed innocent, and therefore have no reason to remember their whereabouts at the time of the crime. Further, any rule shifting the appellee's responsibility of showing non-presence due to passage of time would reward the fugitive who avoids apprehension for long periods of time.

Even if we were to accept the appellee's contention, the Commonwealth has introduced sufficient evidence at the extradition hearing to show the appellee's presence in the demanding state at the time of the crime. Agent Morehead testified at the hearing that the complainant identified the appellee in his...