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decided: December 1, 1975.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1973, No. 0013, and Sept. T., 1973, No. 0357, in case of Commonwealth of Pennsylvania ex rel. Ruby Marshall v. Dewaine Gedney, Director, Release on Recognizance Program.


Leonard Sosnov and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Michael F. Henry, James A. Shellenberger, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Van der Voort, J. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this dissenting opinion.

Author: Price

[ 237 Pa. Super. Page 374]

The question presented in this appeal is quite narrow and may be simply stated. In an extradition proceeding, must the demanding state demonstrate sufficient probable cause to arrest relator before extradition will be granted? The lower court determined that the asylum state could not insist on a showing of probable cause. We are convinced that the determination of probable cause is not the province of the asylum state and we will, therefore, affirm the order of the lower court.

The history of the case indicates that relator was initially arrested on September 6, 1973, by Philadelphia Police Detectives and charged with being a fugitive from the State of Kansas. Relator immediately filed a petition for a writ of habeas corpus and was released from custody because the Commonwealth was unable to produce evidence required by Section 15 of the Uniform Criminal Extradition Act (Act).*fn1

The fugitive charge remained, however, and relator was again arrested on a Pennsylvania Governor's Warrant on November 5, 1973. A petition for a writ of habeas corpus was again filed and an extradition hearing was scheduled for November 27, 1973. Relator contended that the Pennsylvania Governor's Warrant was legally insufficient

[ 237 Pa. Super. Page 375]

    because the papers from Kansas supporting it failed to show probable cause and because the papers did not comply with Section 3 of the Act.*fn2 The trial judge heard testimony and decided these contentions against relator.

Relator then appealed the denial of the habeas corpus petition to this court and to the state supreme court. On January 28, 1974, the supreme court granted the petition for supersedeas, and relator discontinued her appeal in this court pending the outcome of the appeal in the supreme court. On July 1, 1974, the supreme court transferred the case to this court holding that, "in all extradition cases appeals from the grant or denial of a writ of habeas corpus must be taken to the Superior Court." Commonwealth ex rel. Marshall v. Gedney, 456 Pa. 570, 574, 321 A.2d 641, 643 (1974). In this appeal, relator raises only the probable cause issue.

Section 3 of the Act*fn3 sets forth the requirements which must be met before extradition will be granted.

"No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing, alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has

[ 237 Pa. Super. Page 376]

    broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand."

In other words, extradition will be granted if (1) the subject of the extradition is charged with a crime in the demanding state, (2) the subject of the extradition is a fugitive from the demanding state, (3) the subject of the extradition was present in the demanding state at the time of the commission of the crime, and (4) the requisition papers are in order. Commonwealth ex rel. McGowan v. Aytch, 233 Pa. Superior Ct. 66, 334 A.2d 750 (1975).

We have consistently held that the relator does have the unqualified right to require proof that he is the person named in the extradition papers. Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970). However, our courts have refused to examine other alleged defects in the extradition, Commonwealth ex rel. Raucci v. Price, 409 Pa. 90, 185 A.2d 523 (1962) (technical sufficiency of the indictment will not be inquired into); Commonwealth ex rel. Colcough v. Aytch, 227 Pa. Superior Ct. 527, 323 A.2d 359 (1974) (procedural errors in the asylum state will not be inquired into), or to examine questions concerning actual guilt or innocence. Commonwealth ex rel. Coades v. Gable, supra.

In the instant case, the extradition papers include the following: a governor's extradition warrant signed by the Governor of Kansas addressed to the Governor of Pennsylvania; an "Application for Requisition" sworn to by Nick Tomasic, District Attorney for Wyandotte County, Kansas, before Judge Tudor Nellor of the Kansas Magistrate Court; a warrant for relator's arrest issued by Judge Nellor; a complaint sworn to by Mr. Tomasic

[ 237 Pa. Super. Page 377]

    before the Clerk of the Magistrate Court; and various other affidavits sworn to before a notary public identifying the above officials and stating that they believe relator committed the crime of murder in Kansas. Relator does not contest that these papers are sufficient to satisfy the mandates of the statute, nor is there any question that she is the subject of the extradition and was in the demanding state at the time of the commission of the crime. Rather, relator contends that there must be a showing, prior to the extradition, of the existence of probable cause in the demanding state.

There is no doubt that the statute contains no requirement that a showing of probable cause be made before extradition will be allowed. Commonwealth ex rel. Ebbole v. Robinson, 223 Pa. Superior Ct. 119, 299 A.2d 47 (1972). Therefore, if we were to agree with relator's position, we would have to conclude that there is a constitutional requirement that probable cause for the arrest in the demanding state be shown at the extradition hearing in the asylum state.

The question of whether the existence of probable cause to arrest in the demanding state need be shown in the asylum state before extradition will be granted is by no means novel, but has been considered by other courts of this nation.*fn4 Those courts which have held that there is no need to demonstrate probable cause before the extradition will be granted have usually done so on the theory that extradition statutes, as well as Article 4,

[ 237 Pa. Super. Page 378]

Section 2, Clause 2 of the Constitution of the United States, have as their purpose expeditious and summary executive procedures for returning fugitives to the demanding state. We agree.

The leading case contra is Kirkland v. Preston, 385 F.2d 670 (D.C. Cir. 1967). In that case and in those other jurisdictions requiring that probable cause be demonstrated in the asylum state before extradition be granted, the reasoning generally adopted is based on an interpretation of the implementing statute in light of the fourth and fourteenth amendments. Such interpretation thus, in effect, adds the requirement of showing probable cause before the asylum state may order the extradition. Those decisions, however, are not binding upon us and we specifically reject their reasoning.

There is no attempt here to abridge the rights of the relator. Allowing extradition after the statutory requirements are met will not in any manner deny relator her right to a fair and impartial determination of her case. Relator will have every opportunity to assert her rights under the fourth and fourteenth amendments in the demanding state. The requirements already incorporated in the statute supply an effective guarantee against the extradition of an incorrect party. The offense, the evidence, the witnesses, and the defense all lie in the demanding state, and the courts there should decide all aspects of the case, including all questions of probable cause.

Our courts have held that allegations contained in the requisition for extradition and the accompanying affidavits must be accepted as prima facie true, Commonwealth ex rel. Reis v. Aytch, 225 Pa. Superior Ct. 315, 310 A.2d 681 (1973), and that a governor's extradition warrant is prima facie evidence that all legal requirements have been met. Commonwealth ex rel. Raucci v. Price, supra. Relator does not question that the papers satisfy the ...

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