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COMMONWEALTH PENNSYLVANIA EX REL. HERMAN SIMPSON v. LOUIS AYTCH (04/19/77)

decided: April 19, 1977.

COMMONWEALTH OF PENNSYLVANIA EX REL. HERMAN SIMPSON, APPELLANT,
v.
LOUIS AYTCH, SUPERINTENDENT OF PHILADELPHIA PRISONS



Appeal from the Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, H.C. No. 76-05-0006 M.C. No. 76-04-0991. No. 2000 October Term, 1976.

COUNSEL

Jonathan W. Miller, Assistant Public Defender, Philadelphia, for appellant.

Deborah E. Glass and Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

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

Author: Watkins

[ 247 Pa. Super. Page 350]

Appellant was charged with murder in North Carolina and was arrested in Philadelphia, Pennsylvania. Extradition proceedings were held, and appellant filed a petition for a writ of habeas corpus challenging his extradition to North Carolina. After a hearing before Judge Doty, the petition was denied.

Extradition should be ordered if: (1) the extradition papers are in order; (2) the subject of the extradition is charged with a crime in the demanding state; (3) the subject is a fugitive from the demanding state; and (4) the subject was in the demanding state at the time that the crime was committed. Commonwealth ex rel. Banks v. Hendrick, 430 Pa. 575, 243 A.2d 438 (1968). The court below found that all of the requirements for extradition were met and we affirm.

An indictment did not accompany the warrants of extradition, and the arrest warrant was issued about two weeks prior to the date when the affidavit was sworn to before a magistrate. The Uniform Criminal Extradition Act, 19 P.S. § 191.3 requires that the demand for extradition must be

[ 247 Pa. Super. Page 351]

"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 . . ."

Although the warrant in this case was issued prior to the affidavit taken before the magistrate, there was sufficient compliance with § 191.3 of the Uniform Criminal Extradition Act. See Commonwealth ex rel. Hernandez v. Price, 385 Pa. 44, 122 A.2d 206 (1956). While it is preferable that the affidavit be filed prior to the issuance of the warrant, failure to do so is not fatal to the extradition proceedings.

Appellant contends that the documents requesting his extradition are legally insufficient as his arrest on the governor's warrant was not supported by probable cause. However, probable cause for arrest in the demanding state need not be demonstrated in the asylum state before extradition may be granted and the papers accompanying the governor's warrant need not show probable cause for arrest. Commonwealth ex rel. Lattimore v. Gedney, 240 Pa. Super. 226, 233, 363 A.2d 786 (1976). Nevertheless, in the circumstances of this case, we find that there was probable cause for the defendant's arrest in Pennsylvania. The record established that a murder occurred in Fayetteville, North Carolina, on March 21, 1976. On the date of the homicide, a call was placed from the decedent's residence at 8:12 a. m. to a telephone number in Philadelphia, Pennsylvania. The Philadelphia police were requested by North Carolina authorities to assist them in running down the phone number and to interview the person having the phone number in Philadelphia to ascertain what he or she knew about the call. The Philadelphia phone number was traced to a residence ...


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