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COMMONWEALTH v. ALLEN (04/04/73)

decided: April 4, 1973.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, No. 259, in case of Commonwealth of Pennsylvania v. Robert Wayne Allen.

COUNSEL

Jonathan Miller, Assistant Defender, with him Robert Agran, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Richard D. Steel, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.

Author: Per Curiam

[ 224 Pa. Super. Page 158]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Spaulding, J.:

Appellant Robert Wayne Allen appeals from the denial of his writ of habeas corpus and an order extraditing him to Florida by Judge William Porter of the Court of Common Pleas of Philadelphia. A hearing on the writ was held on May 1, 1972, at which appellant presented two witnesses to support his contention that he was not in Florida on the date of the alleged offense. The court below, however, held that this testimony was of dubious credibility and was not sufficient to rebut the probative force of the official extradition documents and the Commonwealth's testimony in support thereof.*fn1

[ 224 Pa. Super. Page 159]

The Uniform Criminal Extradition Act makes it clear that guilt or innocence may not be the subject of inquiry in an extradition matter.*fn2 Case law, however, establishes very clearly the necessity of proof that "the subject of the extradition was present in the demanding state at the time of the commission of the crime." Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 554, 264 A.2d 716, 718 (1970). The formal extradition papers satisfy that requirement if no evidence to the contrary is offered. Thus, in Commonwealth ex rel. Page 159} Edgar v. Davis, 425 Pa. 133, 136, 228 A.2d 742, 744 (1967), the Court pointed out with respect to the contention of non-presence in the demanding state, that: "After the Commonwealth rested its case, relator's counsel refused to offer any evidence. It follows that there is no merit in relator's first contention."

In the instant case, appellant did offer evidence which, even if dubious, makes his presence a crucial issue. Therefore, the prima facie allegation in the extradition papers was no longer sufficient by itself. This was the conclusion in the Davis case, id., where the second issue was whether the relator was the person charged with the crime. The Court there dealt with this question, holding that: "That was the crucial issue in this case and the relator was entitled to a writ of habeas corpus and to be ...


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