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COMMONWEALTH EX REL. KELLY v. SANTO (11/28/69)

decided: November 28, 1969.

COMMONWEALTH EX REL. KELLY, APPELLANT,
v.
SANTO



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, Nos. 163 and 164, in cases of Commonwealth ex rel. Count Kelly v. Gerald Santo, Warden, and Commonwealth ex rel. Major Coxson v. Same.

COUNSEL

F. Emmett Fitzpatrick, Jr., with him James J. Wilson, for appellants.

Paul R. Michel, Assistant District Attorney, with him Harold K. Don, Jr. and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 436 Pa. Page 206]

Harold Gelvan, Richard Berman, Major Coxson and Count Kelly were indicted in the State of New York for grand larceny and conspiracy to commit grand larceny. Subsequently, Kelly and Coxson were taken into custody in the City of Philadelphia, Pennsylvania, and confined while awaiting extradition. Habeas corpus proceedings were instituted contesting the legality of their arrests and proposed extraditions, pursuant to Section 10 of the Uniform Criminal Extradition Act, Act of July 8, 1941, P. L. 288, § 10, 19 P.S. § 191.10. These appeals are from the lower court's order denying the writs.*fn1 We affirm.

The scope of review over extradition procedures by the courts of an asylum state is legally limited. Commonwealth ex rel. Walker v. Hendrick, 434 Pa. 175, 253 A.2d 95 (1969), and Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 228 A.2d 742 (1967). Such courts may not inquire into or determine the guilt or innocence of the party sought to be extradited. Commonwealth ex rel. Edgar v. Davis, supra. However, it is the obligation of the courts of the asylum state to make certain that the requirements of the Uniform Criminal Extradition Act, supra, have been satisfied before the accused is surrendered to the demanding state. Commonwealth ex rel. Aronson v. Price, 412 Pa. 493, 194 A.2d 881 (1963).

Before extradition is ordered it should be determined, inter alia, that the person whose extradition is sought is charged with a crime in the demanding state, and that the requisition papers are in order. See Commonwealth ex rel. Edgar v. Davis, supra.

Our study of the record is persuasive that the Governor's warrant recites in detail sufficient facts to establish

[ 436 Pa. Page 207]

    that Coxson and Kelly committed a crime under the laws of the State of New York and that the extradition papers are otherwise in proper order.

It is also generally required before extradition is ordered that it be established (if proof is demanded) that the subject of the extradition was present in the demanding state at the time when the alleged crime was committed. Although stated in another context, it is the appellants' prime contention that since the evidence at the habeas corpus hearing in the court below failed to disclose their presence in the State of New York when the conspiracy was formed or during the continuation thereof, extradition should not be ordered. However, this position overlooks an exception to the general rule requiring presence in the demanding state at the time the crime was committed which is provided for in Section 6 of the Uniform Criminal Extradition Act, supra:

"The Governor of this State may also surrender on demand of the executive authority of any other state any person in this State charged in such other state in the manner provided in section 3 with committing an act in this State . . . intentionally resulting in a crime in the state whose executive authority is making the demand and the provisions of this act not otherwise inconsistent shall apply to such cases even ...


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