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COMMONWEALTH PENNSYLVANIA v. JAMES ROLAND SHERMAN (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES ROLAND SHERMAN, APPELLANT

NO. 1513 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 264 April Term, 1980.

Before Hester, Disalle and Montgomery, JJ. DiSALLE, J., did not participate in the consideration or review of this case.

MEMORANDUM

This is an appeal from an Order dismissing a Petition for Writ of Habeas Corpus and granting extradition. The procedural history and facts relevant to the issues on appeal are as follows:

The Prosecutor's Office of Burlington County, New Jersey, sought temporary custody of appellant pursuant to Article IV of the Agreement on Detainers, 42 Pa. C.S. Section 9101, in order to transfer appellant there to answer burglary charges.

In Adams v. Cuyler,*fn1 592 F 2d 720 (3rd Cir. (1979)), the Third Circuit Court of Appeals held that the Interstate Agreement on Detainers Act reserves to a prisoner the same procedural rights granted under the Uniform Criminal Extradition Act, 42 Pa. C.S.A. Section 9121 et seq., absent the specified exception. Those rights include the right to a hearing with the aid of counsel before a judge of a court of record. Commonwealth ex rel. Marshall v. Gedney, 478 Pa. 299, 386 A.2d 942 (1978).

Following a hearing, the trial court dismissed appellant's Petition for Writ of Habeas Corpus and entered an order granting extradition. This appeal followed.

Appellant contends the Commonwealth failed to prove each element of extradition, and more specifically that appellant was in the demanding state at the time the crime was committed.

We note that the Commonwealth must show that the subject has been charged with a crime in the demanding state; the subject is a fugitive from that state; the subject was present in the demanding state at the time the crime was committed; the required papers are in order and the subject is in fact the person being charged. Adams v. Cuyler, supra, citing Commonwealth ex rel. Marshall v. Gedney, supra.

"... As has been emphasized, in every extradition proceeding 'the relator has an absolute right to require that his identity as the person named in the Extradition Requisition be established and proved by the weight of credible evidence.'... Because the guilt or innocence of the accused is not in question, however,... the Commonwealth's burden is not measured against the 'beyond a reasonable doubt' standard, but merely against the 'preponderance of the evidence' standard 'competent evidence to establish reasonable ground is not necessarily evidence sufficient to convict, nor only such as can pass technical rules governing the admissibility of evidence in criminal trials...'". Commonwealth ex rel. Pizzo v. Aytch, Pa. Super. , 416 A.2d 1086, 1088 (1979), quoting Commonwealth v. Rowe, 264 Pa. Super. 67, 398 A.2d 1060, 1061-2 (1979).

In order to prove that appellant was in the demanding state at the time of the offense, the Commonwealth produced Marlene Bates, the victim of the burglary. She testified that she saw appellant running from her home carrying her jewelry. She viewed appellant for approximately sixty seconds from a distance of fifteen feet on a bright sunny day, and also briefly pursued him down her driveway. She stated that she was "absolutely positive" regarding her identification of appellant. Her testimony was supplemented by that of the investigating officer and by a certified copy of the indictment.

We, therefore, find that the required elements for extradition were proven by a preponderance of the evidence.

Appellant also contends the trial court erred in granting a continuance of the originally scheduled hearing. The trial court received appellant's petition on May 15, 1980 and scheduled a hearing for May 20, 1980. When the Commonwealth was unable to produce its out of state witnesses by May 20, 1980, the trial court continued the hearing until June 3, 1980.

The grant of a continuance rests with the sound discretion of the trial court. Commonwealth v. Hughes, Pa. Super. , 399 A.2d 694 (1979). Since the hearing was originally scheduled within five days, we find no abuse of discretion in granting the Commonwealth a short continuance in order to secure necessary out of state witnesses.

Order Affirmed.

DiSALLE, J., did not participate in the consideration or review of this case.


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