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COMMONWEALTH PENNSYLVANIA EX REL. OSCAR EARL KELLY v. LOUIS J. AYTCH (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. OSCAR EARL KELLY, APPELLANT,
v.
LOUIS J. AYTCH, SUPERINTENDENT, PHILADELPHIA COUNTY PRISONS



COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

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

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 254 Pa. Super. Page 31]

On July 12, 1975, appellant, aged seventeen, was arrested in Philadelphia and charged with being a fugitive from Mississippi and Tennessee. On July 22, after a hearing pursuant to Section 15 of the Uniform Criminal Extradition Act, Act of July 8, 1941, P.L. 288, 19 P.S. § 191.15, Judge CODY concluded that appellant was the person wanted by the demanding states, and committed him to the county jail pending receipt of Governors' Warrants. On August 12 appellant filed a petition to transfer the case to Family Court; the petition alleged that appellant was a "child" within the definition of the Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, § 2, 11 P.S. § 50-102. On September 11 appellant's petition to transfer was denied, and the case was continued to October 10 because the Governors' Warrants were still outstanding. On September 23 the Governors' Warrants were lodged.

The hearing on October 10 was before Judge DOTY. The Commonwealth introduced into evidence the extradition papers and the testimony of one Clarence Russel Ashford, who identified appellant. Appellant offered no evidence but at the outset of the hearing again asserted that the case should be transferred to Family Court. Judge DOTY ordered appellant extradited but granted a writ of supersedeas pending disposition of this appeal.

I

Section 3 of the Juvenile Act, supra, 11 P.S. § 50-103, provides that the Family Court's jurisdiction

[ 254 Pa. Super. Page 32]

. . . shall apply exclusively to the following:

(1) Proceedings in which a child is alleged to be delinquent or deprived.

(2) Proceedings arising under sections 32 through 35 [of the Act].

(3) Transfers arising under section 7 [of the Act].

(4) Proceedings under the "Interstate Compact on Juveniles," section 731, act of June 13, 1967 (P.L. 31) . . .

Appellant argues that Subsections 1, 3, and 4 apply here. We may summarily reject the argument that Subsection 1 applies, for at no stage in the extradition proceedings was appellant "alleged to be delinquent or deprived". Whether either Subsection 3 or 4 applies must be more carefully considered.

-A-

As will have been observed, Subsection 3 refers to Section 7 of the Act, supra, 11 P.S. § 50-303. Section 7 provides:

If it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this act shall immediately become applicable, and the judge shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the Family Court Division or to a judge of the court assigned to conduct juvenile hearings . . . .

(Emphasis added.)

Appellant first argues that the extradition proceeding here is "a criminal proceeding other than murder" because he is not charged in Pennsylvania with the crime of murder but with the crime of being a fugitive. The point is well taken. In Commonwealth ex rel. Marshall v. Gedney, 456 Pa. 570, 321 A.2d 641 (1974), our Supreme Court held that an appeal from the grant or denial of a petition for writ of habeas corpus must be to this court, even when the crime charged in the demanding state is felonious homicide, because:

[ 254 Pa. Super. Page 33]

[T]he inquiry in extradition appeals is narrow; it includes no consideration of the substance of the crime charged in the demanding state. . . . The scope of the asylum state's inquest is the same whether the alleged fugitive is charged with simple assault or murder in the first degree. Thus in Pennsylvania appellant is not charged with felonious homicide, but with being a fugitive. Id., 456 Pa. at 572, 321 A.2d at 642 (citations omitted) (emphasis added).

Appellant next argues that he is a "child" within the definition in Section 2 of the Act, supra, ...


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