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COMMONWEALTH v. KAMINSKY (11/10/65)

decided: November 10, 1965.

COMMONWEALTH
v.
KAMINSKY, APPELLANT



Appeal from order of Court of Quarter Sessions of Philadelphia County, May T., 1965, No. 961 Miscellaneous Docket, in case of Commonwealth of Pennsylvania v. Sherman C. Kaminsky, also known as Paul A. Vargo.

COUNSEL

Robert F. Simone, for appellant.

Charles A. Rogovin, Assistant District Attorney, with him Abner H. Silver and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 206 Pa. Super. Page 481]

This is an appeal by defendant from the order of the Court of Quarter Sessions of Philadelphia County remanding*fn1 him to the New York authorities, based on the procedure provided for in the Act of June 25, 1937, P. L. 2086, 61 PS §§ 321, 322, and entitled "Providing for the making of compacts by the Commonwealth with other states for mutual helpfulness in relation to persons on probation or parole. . . ." (hereinafter called the Compact Act).

The defendant contends that the court below erred in following the Compact Act and that it should have applied the provisions of the Uniform Criminal Extradition Act (Act of July 8, 1941, P. L. 288, 19 PS § 191.1 et seq.). We cannot agree.

This is a case of first impression in Pennsylvania, and there are very few cases in other jurisdictions.

[ 206 Pa. Super. Page 482]

Sherman Kaminsky, also known as Paul A. Vargo, appellant, was paroled from the Green Haven Prison, State of New York, on February 20, 1962. Pursuant to the Interstate Compact Concerning Parole which was adopted by the State of New York (Correction Law, § 224) and by the State of Maryland (Code 1951, Art. 41, §§ 106-108), the duties of parole supervision were transferred to the Maryland authorities, where appellant was permitted to reside. Both of these acts are in all respects similar to the Pennsylvania Compact Act. A condition precedent to this transfer procedure was that appellant agree to abide by the terms of parole established by New York and Maryland. This agreement was embodied in a document, signed by appellant on February 15, 1962, entitled "Parole and Probation Form III, Agreement to Return," which states as follows: "I, Sherman Kaminsky, in consideration of being granted parole by the State of New York Division of Parole and especially being granted the privilege to leave the state of New York to go to Baltimore, Maryland, hereby agree . . .

"4. That I hereby do waive extradition to the state of New York from any jurisdiction in or outside the United States where I may be found and also agree that I will not contest any effort by any jurisdiction to return me to the state of New York." (Emphasis supplied).

Appellant was transferred to Maryland under supervision of the parole authorities of that State. Subsequently, appellant, voluntarily and without the consent of the New York or Maryland authorities, left Maryland and entered Pennsylvania. This conduct constituted a violation of his New York parole.

On May 24, 1965, appellant was arrested in Philadelphia pursuant to a warrant of arrest issued by Magistrate Edward T. Quinn, charging him with being a ...


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