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COMMONWEALTH v. MURPHY (09/22/75)

decided: September 22, 1975.

COMMONWEALTH, APPELLANT,
v.
MURPHY



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nos. 74-09-1500 and 7400-4795, in case of Commonwealth of Pennsylvania v. Thurman Murphy.

COUNSEL

Howell K. Rosenberg, James A. Shellenberger, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

Phyllis H. Subin, Jonathan Miller, and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 236 Pa. Super. Page 38]

This appeal is taken from an order granting the appellee's petition for a writ of habeas corpus and refusing extradition.

On July 1, 1973, the appellee was arrested in Alexandria, Virginia, by agent Thomas Morehead of the local police department, for burglaries committed in Alexandria

[ 236 Pa. Super. Page 39]

    on June 4 and June 11, 1973. The complainant identified the appellee as the perpetrator of the June 4 burglary in the presence of agent Morehead. At the Virginia preliminary hearing, agent Morehead identified the appellee as the man he arrested. Subsequent to the preliminary hearing, both burglary charges were nolle prossed. The appellee was discharged and left the jurisdiction. New evidence was discovered soon afterwards, however, and an Alexandria Grand Jury indicted the appellee on the same charges.

On September 13, 1974, the appellee was arrested in Philadelphia and was charged with being a fugitive from Virginia. A preliminary arraignment was held in Municipal Court on the fugitive charge on September 14, 1974, and a "30 day" hearing was scheduled for October 15, 1974, pursuant to §§ 191.15 and 191.17 of the Uniform Criminal Extradition Act.*fn1 When the appellee appeared in court on October 15, 1974, the Commonwealth had not yet received the Governors' warrants and accompanying extradition documents. The appellee was, therefore, recommitted for an additional sixty days pursuant to § 191.17 of the Act. On November 18, 1974, the appellee was arrested on valid Governors' warrants from Pennsylvania and Virginia. Thereafter the appellee challenged his extradition by filing a petition for writ of habeas corpus. The hearing was held on December 6, 1974, and the Governors' warrants and accompanying extradition documents were introduced in evidence. In addition, agent Morehead testified that the appellee was the individual he arrested in Virginia, and that the complainant positively identified the appellee as the perpetrator of the June 4, 1973 burglary in his presence. The sole evidence introduced by the appellee was a copy of the Municipal Court transcript. The lower court denied extradition because it found that the Commonwealth had failed to

[ 236 Pa. Super. Page 40]

    prove that the appellee was present in the demanding state at the time of the crime, and that the appellee's "30 day" hearing was held thirty-two days after initial confinement.

Under the Uniform Criminal Extradition Act, supra, extradition will be ordered upon proof of four facts: (1) the subject of the extradition is a person charged with a crime in the demanding state; (2) the subject of the extradition was in the demanding state at the time of the crime; (3) the subject is a fugitive from the demanding state; and (4) the requisition papers are in order. Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970); Commonwealth ex rel. Flood v. Pizzo, 434 Pa. 208, 252 A.2d 656 (1969); Commonwealth ex rel. Colcough v. Aytch, 227 Pa. Superior Ct. 527, 323 A.2d 359 (1974). It is well-settled that when the extradition papers are in order, the allegations contained therein must be accepted as "prima facie true." Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 135, 228 A.2d 742, 744 (1967). See also Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523 (1962); Commonwealth ex rel. Reis v. Aytch, 225 Pa. Superior Ct. ...


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