No. 290 January Term, 1977, Appeal from the Order of the Order of Superior Court at 1286 Oct. Term, 1974, affirming Order of C. P. Philadelphia, at No. 0013, November Term, 1973, M.C. No. 73-09-0357.
Defender Assn. of Philadelphia, Benjamin Lerner, Defender, Leonard Sosnov, John W. Packel, Asst. Defenders Steven Morley, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a concurring opinion in which Eagen, C. J., and Pomeroy and Nix, JJ., join. Manderino, J., files a dissenting opinion.
On September 6, 1973, appellant, Ruby Marshall, was arrested by the Philadelphia police. The basis for the arrest was the issuance of a Pennsylvania Governor's Warrant stating that appellant was a fugitive from Kansas, where
she was charged with felonious homicide in the death of her husband, Hezekial Marshall. Appellant filed a writ of habeas corpus, and on September 25, 1973, she was released because of the Commonwealth's failure to comply with § 15 of the Uniform Criminal Extradition Act. Act of July 8, 1941, P.L. 288, § 15, 19 P.S. 191.15.*fn1
On November 5, 1973, appellant was rearrested by the Philadelphia police pursuant to a Pennsylvania Governor's Warrant. The basic criminal charges surrounding her "arrest" were the allegations of her participation in the homicide of her husband in Kansas. Appellant filed a second habeas corpus petition, alleging that the requirements of § 3 of the Uniform Criminal Extradition Act, supra, were not met because of the failure of the demanding state (Kansas) to supply "probable cause" to support the lodging of criminal charges against her. On December 13, 1973, the Court of Common Pleas of Philadelphia denied appellant's petition for a writ of habeas corpus and ordered extradition, staying its order until completion of appellate review.
On January 10, 1974, appellant filed an appeal in this court and on January 14, 1974, also filed a petition for supersedeas. On January 28, 1974, we granted appellant's petition for supersedeas. On July 1, 1974, this court transferred the appeal to the Superior Court for disposition. See Com. ex rel. Marshall v. Gedney, 456 Pa. 570, 321 A.2d 641 (1974). On December 1, 1975, the Superior Court affirmed the order of the Court of Common Pleas of Philadelphia and allowed extradition. See Com. ex rel. Marshall v. Gedney, 237 Pa. Super. 372, 352 A.2d 528 (1975). On January 31,
, this court granted appellant's petition for allowance of appeal.
Appellant challenges the orders of the Court of Common Pleas and of the Superior Court, which require extradition to Kansas. Appellant contends that the demand for extradition and the documents required by § 3 of the Uniform Criminal Extradition Act, supra, must show probable cause that the alleged fugitive committed the crime charged before a valid arrest can be made by the asylum state. We do not agree.
Article 4, § 2, paragraph 2 of the United States Constitution provides:
"A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."
The above clause is the constitutional authority for the extradition of persons "charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State". The United States Congress in 1793 passed the first implementing legislation. See 18 U.S.C.A. § 3182.
In 1941, the Pennsylvania Legislature passed the Uniform Criminal Extradition Act. See the Act of July 8, 1941, P.L. 288, § 1, 19 P.S. 191.1, et seq. Both the federal statute and the Uniform Criminal Extradition Act provide the procedures to carry out a fugitive extradition.
Section 3 of the Uniform Criminal Extradition Act provides:
"No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing, alleging, except in cases arising under section 6, 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 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. . . ."
Prior to extradition, the Governor of the asylum state must receive in writing from the demanding state the following:
1. An allegation that the person named in the extradition was present in the demanding state at the time of the commission of the crime.
2. (a) copy of the indictment, or
(b) information supported by affidavit, or
(c) an affidavit made before a magistrate together with a copy of any warrant ...