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COMMONWEALTH PENNSYLVANIA EX REL. DREW KELLY COLBERT v. LOUIS AYTCH (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA EX REL. DREW KELLY COLBERT, APPELLANT,
v.
LOUIS AYTCH, SUPERINTENDENT, PHILADELPHIA COUNTY PRISONS



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Denying Petition for Writ of Habeas Corpus and Granting Extradition at M.C. 75-07-0012. Trial Div., Crim.Sec. No. 86 October Term, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion.

Author: Hoffman

[ 246 Pa. Super. Page 281]

Appellant contends that the lower court improperly ordered extradition because (1) the proceeding was properly within the jurisdiction of the Juvenile Court and not the Court of Common Pleas; (2) the Commonwealth failed to provide a Section 15 hearing required by the Uniform Criminal Extradition Act;*fn1 and (3) the arrest warrant did not demonstrate probable cause to believe that appellant committed the crime alleged by the demanding state.

Appellant, seventeen years old, and wanted in South Carolina for murder, was arrested as a fugitive in

[ 246 Pa. Super. Page 282]

Philadelphia, on April 21, 1975.*fn2 After a preliminary hearing held that day, the court concluded that appellant appeared to be the person charged in South Carolina, and the thirty-day hearing was set for May 19. See 19 P.S. § 191.15. Prior to May 19, appellant unsuccessfully attempted to transfer the proceeding to Juvenile Court. Because the demand papers had not yet arrived from South Carolina on May 19, the court ordered appellant recommitted until June 18, when appellant was recommitted a second time for the same reason pursuant to 19 P.S. § 191.17. On July 18, the court dismissed all prior detainers, and the appellant was arrested on the Governor's warrant, which had been issued the same day. On July 30, appellant requested leave to file a writ of habeas corpus, and a hearing was scheduled for August 4. On August 4, the hearing on the habeas corpus petition was continued, at appellant's request, until September 3, when testimony was taken. On September 16, following the submission of briefs and argument, the court denied appellant's habeas corpus petition and ordered extradition.

Appellant first contends that because he is a juvenile the court should have granted his petition to transfer the case to the Juvenile Court. In support of his argument, appellant relies on the provisions of Pennsylvania's Juvenile Act.*fn3

The jurisdiction of the Juvenile Court is limited exclusively to four types of proceedings:

[ 246 Pa. Super. Page 283]

"(1) Proceedings in which a child is alleged to be ...


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