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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  Appellee               :
                                         :
                    v.                   :
                                         :
JAMES CUNNINGHAM,                        :
                                         :
                  Appellant              :     No. 2111 MDA 2015

                Appeal from the Order November 13, 2015,
            in the Court of Common Pleas of Luzerne County,
           Criminal Division at No(s): CP-40-MD-0000745-2015

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  Appellee               :
                                         :
                    v.                   :
                                         :
JAMES CUNNINGHAM,                        :
                                         :
                  Appellant              :     No. 2281 MDA 2015

                Appeal from the Order December 2, 2015,
            in the Court of Common Pleas of Luzerne County,
           Criminal Division at No(s): CP-40-MD-0000745-2015

BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 13, 2017

     In   these    consolidated   appeals,   James   Cunningham    (Appellant)

challenges the November 13, 2015 and December 2, 2015 trial court orders

addressing his petition for writ of habeas corpus, which contested the

validity of an extradition warrant ordering his surrender to the state of




*Retired Senior Judge assigned to the Superior Court.
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Colorado.1    Additionally, at both appeal numbers, Appellant’s counsel has

filed a petition to withdraw and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant counsel’s motions to withdraw and dismiss the appeals as

moot.

        For the purposes of these appeals, we consider the following relevant

information. On April 11, 2013, Appellant allegedly committed a number of

offenses in the state of Colorado, among them attempted second-degree

murder. Appellant fled that state and a warrant was issued for his arrest.

Subsequently, he was located in Luzerne County, Pennsylvania and, on July

15, 2015, was taken into custody on the outstanding Colorado warrant. On

July 16, 2015, Appellant was arraigned, bond was set at $1,000,000, and

the process of extraditing Appellant to Colorado began. On or about October

22, 2015, Appellant filed a petition for writ of habeas corpus, in which he

alleged that he had been held in Luzerne County “for a total of 90 days”

without production of a Governor’s Warrant in violation of 42 Pa.C.S. §§

9136 and 9138 (governing the timeframes applicable to production of

Governor’s Warrants in challenges to extradition proceedings).       Appellant’s

First Petition for Writ of Habeas Corpus, 10/22/2015, at 1 ¶¶ 4-6.




1
  We have sua sponte consolidated Appellants appeals as they each raise a
similar issue. See Pa.R.A.P. 513.


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     On October 23, 2015, Appellant’s petition was granted and he was

ordered to be “released p.o. [pending other] detainers.” Order, 10/23/2015.

However, that same day, Appellant was arrested on new fugitive from justice

charges.   Once again, he challenged extradition. On November 10, 2015,

Appellant filed a second petition for writ of habeas corpus which, after

substantial litigation, was effectively denied by court order dated December

2, 2015. That order (1) granted the Commonwealth’s petition for extradition

and (2) denied Appellant’s motion to stay extradition. See N.T., 12/2/2015,

at 31-38; Order Granting Extradition 12/2/2015; Order Denying Defense

Motion for Stay Pending Appeal, 12/2/2015; Findings of Fact and Order,

12/4/2015.

     Appellant filed two notices of appeal.   The first, which was filed on

November 30, 2015 and docketed at 2111 MDA 2015, was taken from a

November 13, 2015 order granting the Commonwealth 30 days to produce a

Governor’s Warrant, with leave to file for an extension. The second, which

was filed on December 2, 2015 and docketed at 2281 MDA 2015, was taken

from the December 2, 2015 order. Both Appellant and the trial court have

complied with the mandates of Pa.R.A.P. 1925.      After filing his notices of

appeal, Appellant was transferred to Colorado. Anders Brief at 10.

     On July 5, 2016, Appellant’s counsel filed with this Court, at both case

numbers, an Anders brief and a petition to withdraw as counsel. On

December 23, 2016, due to deficiencies in counsel’s Anders briefs and



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petitions to withdraw, we denied the petitions and remanded to allow

counsel to file either an advocate’s brief or a proper Anders brief and

petition to withdraw.   Counsel’s second Anders briefs and petitions to

withdraw, filed on January 31, 2017, are now before us.

     Before we may consider the substance of this appeal, we must address

counsel’s compliance with Anders.

            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel either to comply with Anders or file an
     advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the
     filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:




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        [I]n the Anders brief that accompanies court-appointed
        counsel’s petition to withdraw, counsel must: (1) provide a
        summary of the procedural history and facts, with citations to
        the record; (2) refer to anything in the record that counsel
        believes arguably supports the appeal; (3) set forth counsel’s
        conclusion that the appeal is frivolous; and (4) state counsel’s
        reasons for concluding that the appeal is frivolous. Counsel
        should articulate the relevant facts of record, controlling case
        law, and/or statutes on point that have led to the conclusion that
        the appeal is frivolous.

Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s petitions to withdraw and

Anders briefs, we conclude that counsel has substantially complied with the

above requirements.2      The record further reflects that counsel has (1)

provided Appellant with a copy of both Anders briefs and petitions to

withdraw, (2) sent a letter to Appellant in Colorado, advising him of his right

to retain new counsel, proceed pro se, or raise any additional points that he

deems worthy of this Court’s attention, and (3) attached a copy of this letter

to the petition to withdraw, as required under Commonwealth v.

Millisock, 873 A.2d 748, 751-52 (Pa. Super. 2005). Once “counsel has met

these obligations, ‘it then becomes the responsibility of the reviewing court

to make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.’”

Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)

(quoting Santiago, 978 A.2d at 354 n. 5).


2
    Appellant has not responded to counsel’s petitions to withdraw.



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      In her second Anders brief, counsel sets forth two issues of arguable

merit.

      1. Did the trial court err in failing to grant Appellant’s petition for
      writ of habeas corpus where Appellant was detained beyond the
      period allowable under the Uniform Criminal Extradition Act and
      where he was not discharged prior to his arrest[?]

      2. Was Appellant’s right to counsel, guaranteed under the Sixth
      Amendment of the United States Constitution and Article 1,
      section 9 of the Pennsylvania Constitution violated when
      Appellant was not afforded counsel at his preliminary
      arraignment following his rearrest[?]

Anders Brief at 2 (unnecessary capitalization omitted).

      We review these claims mindful of the following.

            It is well established that the courts of the asylum state
      are limited to an extremely narrow determination in extradition
      matters. Extradition is a constitutionally mandated process and
      will be ordered if the subject of the extradition (1) is charged
      with a crime in the demanding state, (2) is a fugitive from the
      demanding state, (3) was present in the demanding state at the
      time of the commission of the crime, and (4) if the requisition
      papers are in order. The only issue before the [lower] court in an
      extradition/habeas corpus proceeding is whether the demanding
      state has complied with the four criteria of the Extradition Act.

Com. ex rel. Berry v. Aytch, 385 A.2d 354, 356 (Pa. Super. 1978)

(citations omitted).

      A similar issue was addressed by this Court in Commonwealth v.

Caffrey, 508 A.2d 322 (Pa. Super. 1986). Caffrey, a fugitive from Delaware,

filed a petition for writ of habeas corpus, which was denied following an

extradition hearing. Caffrey filed a timely appeal; however, at some point

prior to his appeal being heard, Caffrey was returned to Delaware. Finding



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that   this   Court   was   bound   by   our   Supreme   Court’s   decision   in

Commonwealth v. Carlos, 341 A.2d 71, 73(Pa. 1975), which held that “the

demanding state [is] not the appropriate forum to test, by writ of habeas

corpus, the legality of the extradition,” the Caffrey Court determined that

“the legality of the extradition must be tested in the asylum state prior to

extradition, not afterwards.” Id. at 324. The Court then quashed Caffrey’s

appeal as moot because Caffrey had been transferred to Delaware. Id. The

Court reasoned that to do otherwise would place it in the position of “issuing

orders that can have no effect.” Id. Thus, pursuant to Caffrey, an appeal

challenging the legality of extradition is rendered moot when the accused is

removed from Pennsylvania. Id.           Here, because Appellant has been

extradited to Colorado, his appeals challenging the legality of the extradition

proceedings are moot.

       After thorough review of the certified record, we are convinced that

Appellant’s appeals are wholly frivolous and that there are no non-frivolous

issues to be considered. Accordingly, we dismiss both appeals as moot and

grant counsel’s petitions to withdraw.




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     Appeals dismissed. Motions for leave to withdraw granted.

     Judge Dubow joins.

     P.J. Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/13/2017




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