Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 351, in case of Commonwealth of Pennsylvania v. Gene Kulp.
Louis M. Natali, Jr. and Segal, Appel & Natali, for appellant.
William P. Boland, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone and Spaeth, JJ. Opinion by Hoffman, J.
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Appellant contends that the court below erred in refusing to issue a writ of habeas corpus and ordering his extradition to Texas.
Pennsylvania courts will only order an extradition if: (1) "the subject of the extradition is charged with
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a crime in the demanding state"; (2) the subject "was present in the demanding state at the time" the crime charged was committed; (3) the subject is a fugitive from the demanding state; and, (4) "the requisition papers are in order." Commonwealth ex rel. Dronsfield v. Hohn, 390 Pa. 434, 436, 135 A.2d 757 (1957).
Appellant argues that the Commonwealth failed to produce sufficient evidence to establish his presence in Texas at the time the alleged crime was committed. Miss Donna Kay, an American Airlines stewardess, testified that her employer informed her that she worked the first class compartment on Flight 442 leaving Dallas and arriving in Philadelphia on March 19, 1972. Appellant objects to the introduction of this evidence as being inadmissible hearsay.
Miss Kay also testified that she first identified the appellant, Gene Tunney Kulp, as being on the plane at a photographic identification conducted by an F.B.I. agent in San Francisco. During the habeas corpus proceeding, Miss Kay again identified Kulp as being a passenger on the March 19, 1972, flight from Dallas to Philadelphia. She recounted specific incidents occurring on that flight which enabled her to recall and identify Kulp. Appellant contends that the in-court identification should not have been permitted because it was tainted by an impermissibly suggestive out of court identification conducted in violation of Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).*fn1 Thus, appellant argues that the request for extradition should be denied because his presence in the demanding
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state at the time that the crime was ...