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COMMONWEALTH EX REL. DEVAULT v. KOVACH (04/22/70)

decided: April 22, 1970.

COMMONWEALTH EX REL. DEVAULT, APPELLANT,
v.
KOVACH



Appeal from order of Court of Common Pleas of Fayette County, No. 217 of 1969, in case of Commonwealth ex rel. Robert P. DeVault v. Joseph E. Kovach, District Attorney.

COUNSEL

Simon John, with him Thomas P. Ruane, Jr., for appellant.

Gerald R. Solomon, Assistant District Attorney, with him Joseph E. Kovach, District Attorney, for appellee.

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

Author: Bell

[ 439 Pa. Page 97]

On June 13, 1969, appellant Robert DeVault was arrested in Pennsylvania by a Fayette County detective on a warrant charging him with being a fugitive from justice in the State of Ohio. Extradition proceedings had been originally initiated against appellant by Ohio some two years earlier. Appellant had pleaded guilty to charges of indecent exposure in a Lorain County, Ohio, Court on March 23, 1966. He had been released on his own recognizance and was awaiting sentencing when he left the State of Ohio. On May 5, 1967, the Governor of Ohio requested the Governor of Pennsylvania to deliver DeVault to the appointed Ohio authorities. On May 9, 1967, a Governor's warrant was issued by the Governor of Pennsylvania pursuant to Section 2 of the Uniform Criminal Extradition Act, Act of July 8, 1941, P. L. 288, Section 2, 19 P.S. § 191.2.

DeVault did not spend the two years between the initiation of the Ohio extradition proceedings and his eventual arrest, at liberty. Shortly after leaving Ohio in 1966, he was arrested in Fayette County on charges

[ 439 Pa. Page 98]

    of burglary, larceny and related offenses. He was convicted of those charges on September 8, 1967, in Fayette County, and on November 9, 1967, he was sentenced to a term of from 11 1/2 to 23 months in the Fayette County jail. It was at the expiration of this sentence that he was arrested in Pennsylvania as a fugitive from Ohio.

DeVault was released on bail pending extradition. The Public Defender of Fayette County petitioned the Court for a writ of habeas corpus to challenge the extradition, pursuant to Section 10 of the Uniform Criminal Extradition Act, Act of July 8, 1941, P. L. 288, Section 10, 19 P.S. § 191.10. The writ was issued on June 20, 1969, and a hearing on the writ was held by the Fayette County Court on June 30, 1969. After the hearing, the Court dismissed the writ by an Order dated July 9, 1969. That Court held that DeVault was a fugitive from justice in the State of Ohio and ordered that he be delivered to the Ohio authorities and be returned to that State to face the Ohio charges against him. From that Order, DeVault brings this appeal.

In Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 252 A.2d 656, we recently discussed the basic principles governing our review in this class of case. We there said (page 211): "We recently reaffirmed the proposition that our inquiry in cases of this type was a narrow one and that 'extradition should be ordered if: (1) the extradition papers are in order; and*fn* (2) the subject of the extradition is charged with a crime in the demanding state; and*fn* (3) the subject is a fugitive from the demanding state; and*fn* (4) the subject of the extradition was in the demanding state at the time the crime was committed.' Commonwealth ex rel. Banks v. Hendrick, 430 Pa. 575, 577, 243 A.2d 438, 439

[ 439 Pa. Page 99]

(1968); see, e.g., Ripepi Extradition Case, 427 Pa. 507, 235 A.2d 141 (1967); Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523 (1962); Commonwealth ex rel. Pacewicz ...


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