J-A05037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VICTOR MCKEEVER,
Appellant No. 754 WDA 2016
Appeal from the Order Entered May 23, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-MD-0000711-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 26, 2017
Appellant, Victor McKeever, appeals from the trial court’s order
denying his petition for writ of habeas corpus, through which Appellant
sought to halt his extradition to New York where he faces drug and
conspiracy charges. After this Court denied Appellant’s petition to stay
extradition pending the outcome of this appeal, Appellant was, in fact,
extradited to New York. As such, the Commonwealth argues that Appellant’s
appeal from the merits of the trial court’s order has been rendered moot,
while Appellant asserts the applicability of exceptions to the mootness
doctrine. After careful review, we dismiss the instant appeal as moot.
The following history of the case was provided by the trial court:
On December 30, 2015 the Supreme Court of the State of
New York issued an arrest Warrant for [Appellant]. [Appellant]
was arrested by [the] Allegheny County Sheriff's Office on
January 7, 2016, pursuant to a fugitive arrest warrant issued by
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the Police Department of Nassau County, New York. On April 6,
2016 the Commonwealth notified [Appellant] of its receipt of
requisition papers from the State of New York which included a
Governor's extradition warrant from the State of New York, a
Governor's extradition warrant from the Commonwealth of
Pennsylvania, an application for requisition from the District
Attorney of Nassau County, and an indictment.
On April 11, 2016, [Appellant] moved for a reasonable
period of time to file a Petition for Writ of Habeas Corpus
("Habeas Petition") to challenge his extradition to New York.
[Appellant] was given thirty (30) days to furnish this [c]ourt with
his Habeas Petition. [Appellant] filed his Habeas Petition on May
10, 2016, and an evidentiary hearing was scheduled for May 23,
2016. [Appellant] was charged (as per the New York Governor's
Warrant) with Conspiracy in the Second Degree (two counts),
Conspiracy in the Fourth Degree, Operating as a Major
Trafficker, Criminal Possession of a Controlled Substance in the
First Degree, Criminal Possession of a Controlled Substance in
the Second Degree, and Criminal Possession of a Controlled
Substance in the Third Degree. At the hearing, [Appellant]'s
counsel focused solely on the allegation that [Appellant] is
alleged to have committed one of his crimes on November 22,
2015. This [c]ourt took notice that [Appellant] is also charged
with a conspiracy spanning several months. [Appellant] further
argues that since he allegedly was not in New York, he therefore
cannot be a fugitive. This [c]ourt knows well that conspiracy law
does not require presence. [Appellant] also raised the issue that
he was incorrectly identified as the subject of the warrant and
wished to contest his identity as the person requested in the
warrant. The Commonwealth produced evidence of verification
from New York, the FBI, and fingerprint evidence. Counsel
continued to focus on the fact that [Appellant] was alleged to
have committed an overt act on a date he was not in New York -
to the complete exclusion of the conspiracy charge. [Appellant]
then took the stand of his own volition, where he stated that he
had "never been in New York." On cross-examination[,]
[Appellant] was asked if he knew several of the other members
of the alleged conspiracy. [Appellant] acknowledged that he did
know some of the individuals named in the indictment and
warrant. At this juncture the [c]ourt ended examination to avoid
any impingement upon [Appellant]'s Fifth Amendment Rights.
The [c]ourt then [denied] [Appellant]'s Habeas Petition and
signed an [o]rder [granting] [e]xtradition.
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Trial Court Opinion (TCO), 7/8/16, at 2-4 (emphasis and internal citations
omitted).
Appellant promptly filed a timely notice of appeal on May 25, 2016.
The same day, in the trial court, he also filed an application to stay his
extradition pending the outcome of this appeal. The trial court immediately
denied the motion without comment. See order, 5/25/16, at 1. Appellant
then filed in this Court, again on the same day, an application to stay his
extradition pending the outcome of this appeal (hereinafter, “Stay
Application”). On May 26, 2016 this Court issued a temporary stay of the
extradition order pending our review of the Stay Application. The
Commonwealth filed an answer to Appellant’s Stay Application on May 27,
2016. Appellant filed a letter response to the Commonwealth’s answer on
May 31, 2016. This Court then issued the following order:
Upon consideration of Appellant[’s] May 25, 2016 "Emergency
Miscellaneous Petition for Stay or Injunction Pending Appeal" and
supplement, filed by Mikhail N. Pappas, Esquire, and upon review
of the Commonwealth's May 27, 2016 "Response to Emergency
Miscellaneous Petition for Stay or Injunction Pending Appeal" the
following is hereby ORDERED: this Court's temporary stay
entered on May 26, 2016 is LIFTED and Appellant's petition for
stay is DENIED.
Order, 6/1/16, at 1.
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Also on June 1, 2016, Appellant filed an “Amended Request for
Relief.”1 On June 6, 2016, this Court entered an order stating:
Upon consideration of Appellant[’s] June 1, 2016 “Appellant’s
Amended Request for Relief and Brief in Support,” the request
for summary relief is DENIED, without prejudice for Appellant to
re-raise the matter before a panel assigned to this appeal.
Order, 6/6/16, at 1.
The trial court issued its Pa.R.A.P. 1925(a) opinion on July 8, 2016. In
that opinion, the trial court noted that Appellant had already been extradited
to New York as of the date of its filing. TCO at 2. On October 20, 2016,
Appellant filed an application to remand this matter to the trial court,
premised on the ostensible discovery of “after-discovered evidence … that
the District [Attorney] of Nassau County proffered false testimony or failed
to disclose exculpatory information for the purpose of obtaining Appellant's
extradition.” Appellant’s Application for Remand, 10/20/16, at 4 ¶ 10. On
November 2, 2016, this Court issued an order denying that request. Order,
11/2/16, at 1.
Appellant now presents the following questions for our review:
____________________________________________
1
In this filing, Appellant additionally requested summary relief pursuant to
Pa.R.A.P. 123, in addition to presenting arguments in favor of a stay. See
Appellant’s Amended Request for Relief and Brief in Support, 6/1/16 (asking
this Court to vacate the extradition order and to grant Appellant’s Habeas
Petition filed before the trial court). It appears that when Appellant filed this
document, he was unaware of this Court’s June 1, 2016 order denying the
stay.
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I. Did the Trial Court err or abuse its discretion when it
denied Appellant's Petition for Writ of Habeas Corpus and
entered an Order of Court to Extradite Fugitive, where the
Trial Court found beyond a reasonable doubt and the
Commonwealth stipulated to the fact that Appellant was
not in the demanding [s]tate on November 22, 2015?
II. Did the Trial Court err or abuse its discretion when it found
that Appellant was a non-fugitive subject to extradition,
and it based this finding on its consideration of
jurisdictional facts that were not expressly alleged in the
requisition papers and/or on its consideration of probable
cause as to the charges in the demanding state?
III. Did the District Attorney of Nassau County proffer false
testimony or fail to disclose material exculpatory evidence,
thereby resulting in the denial of Appellant's constitutional
right to due process under the Fourteenth Amendment to
the United States Constitution?
Appellant’s Brief at 6.
Before we address the merits of Appellant’s claims, we must attend to
a threshold question, raised by the Commonwealth in its Brief, of whether
Appellant’s claims have been rendered moot by his extradition to New York.
The claim of mootness … stands on the predicate that a
subsequent change in circumstances has eliminated the
controversy so that the court lacks the ability to issue a
meaningful order, that is, an order that can have any practical
effect. Such an argument, like all claims disputing the existence
of a case or controversy, is intertwined with the precept that
Pennsylvania courts do not issue purely advisory opinions. See,
e.g., Pittsburgh Palisades Park, LLC v. Commonwealth,
585 Pa. 196, 203, 888 A.2d 655, 659 (2005). In In re Gross,
476 Pa. 203, 382 A.2d 116 (1978), for example, this Court
dismissed as moot a case in which a patient had objected to
having a mental health facility administer medication against his
will. The case was dismissed because by the time it reached this
Court the plaintiff was no longer a patient at the facility, and
hence, “there was nothing for the lower court to enjoin, nor can
this Court now order the injunctive relief sought below.” Id. at
211, 382 A.2d at 120–21; see also Allen v. Birmingham
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Twp., 430 Pa. 595, 244 A.2d 661 (1968) (finding moot an
appeal of a common pleas court's refusal to enjoin an excavation
where the excavation had been completed); Strassburger v.
Phila. Record Co., 335 Pa. 485, 487, 6 A.2d 922, 923 (1939)
(dismissing as moot an appeal from the denial of an injunction of
a shareholder's meeting where the meeting had already
occurred).
Burke ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267, 1271 (Pa.
2014).
It appears quite evident to this Court that this matter has been
rendered moot. In the court below, Appellant sought solely to prevent his
extradition to New York. Appellant has now been extradited to New York.
Accordingly, there no longer appears to be a case or controversy about
which this Court could issue a meaningful opinion. Appellant has not
argued, nor can we conceive of, how this Court could issue any order by
which Appellant would be returned to Pennsylvania. This Court has no
jurisdiction in New York or over New York authorities. As such, any opinion
on the merits of Appellant’s claims would be merely advisory in nature, as it
would not serve to dictate the outcome of this case in any meaningful way.
This case is not merely ‘arguably’ moot, it is quintessentially moot.
Nevertheless, Appellant, in his reply brief, asserts exceptions to
Commonwealth’s claim of mootness.2 We will address each of these issues
in turn.
____________________________________________
2
Initially, we recognize that Appellant asserts that the Commonwealth
“waived” its mootness claim, because it did not raise it before the trial court.
(Footnote Continued Next Page)
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Exceptions to the Mootness Doctrine
Appellant offers several arguments that the mootness doctrine is
either inapplicable here, or that an exception applies. First, Appellant
contends that his claims are not mooted because he filed an application for a
stay of extradition, which, he argues, is factually distinct from a case upon
which the Commonwealth “heavily relies” in asserting mootness in this
matter, Commonwealth v. Caffrey, 508 A.2d 322 (Pa. Super. 1986).
Appellant’s Reply Brief at 4.
In Caffrey, the appellant filed a petition for writ of habeas corpus
seeking to prevent his extradition to Delaware. The petition was denied in
the trial court, and Caffrey appealed from the decision. However, Caffrey
was extradited prior to the issuance of this Court’s decision. Consequently,
the Caffrey Court quashed the appeal as moot. In a footnote, the Court
commented:
This does not leave all those denied the writ no appellate review.
A stay of the extradition could be sought pending appeal. See,
for example, Commonwealth ex rel. Raucci v. Price, 409 Pa.
90, 185 A.2d 523 (1962). Had appellant utilized that procedure,
_______________________
(Footnote Continued)
Appellant’s Reply Brief at 11. We find such argument to be bordering on
frivolity, both legally and factually. Appellant was not extradited until after
he filed his appeal and, indeed, after this Court denied his Stay Application.
Clearly, mootness arose while this Court held jurisdiction, and after the trial
court was deprived of it. Nevertheless, a priori, mootness is not an issue
which can be waived. It is nonsensical to think that a finding of waiver with
regard to mootness could magically imbue this Court with the power to act
where there no longer exists a case or controversy upon which to act.
Accordingly, we reject Appellant’s waiver claim.
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he would, most likely, still be in this state and we would have
the ability to rule on the merits of his appeal. However, he did
not and we do not.
Id. at 324 n.3.
With virtually no discussion, Appellant summarily concludes that the
Caffrey Court’s footnote stands for the proposition that the mere filing of an
application to stay necessarily precludes a finding of mootness. We read no
such certainty in the above passage. The footnote demonstrate that the
Caffrey Court was stating no more than that failure to seek a stay was fatal
to Caffrey’s appeal. It says nothing about whether such a stay would be
automatically granted, much less whether, if denied, the mere filing of the
stay immunizes the appellant from a mootness determination. We read this
comment by the Caffrey Court as saying only that an appellant must take
adequate steps to permit an appellate court to rule on the merits of his or
her claims. It does not say that taking such steps will always ensure a ruling
on the merits. Moreover, as will be discussed below, Appellant neither
provided adequate support for his stay request, nor did he exhaust all his
remedies to avoid extradition pending his appeal. Accordingly, we reject
Appellant’s reliance on Caffrey.3
____________________________________________
3
We arrive at the same conclusion with regard to Appellant’s citation of
Commonwealth v. Shaffer, 612 A.2d 1354 (Pa. 1992) (per curiam order)
(citing Caffrey, without any relevant discussion, for the proposition that,
“Because [the a]ppellant failed to request a Stay of Extradition … he was
extradited…. Accordingly, we must grant the Commonwealth’s Motion to
Dismiss”). In extradition matters, absent some delay in the extradition
proceedings, the failure to seek a stay of extradition will be fatal to an
(Footnote Continued Next Page)
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Next, Appellant directs our attention to our June 6, 2016 order,
wherein we denied his request for summary relief, “without prejudice for
Appellant to re-raise the matter before a panel assigned to this appeal.”
Order, 6/6/16, at 1. Appellant argues that “to declare that this matter is
now moot would be prejudicial and inconsistent therewith.” Appellant’s
Reply Brief at 4. We disagree.
Appellant’s Stay Application was not denied by our June 6, 2016 order.
Appellant’s Stay application was denied by the order we issued on June 1,
2016. Therefore, our June 6, 2016 order addressed only Appellant’s claim
for summary relief on the merits. These separate orders addressed
completely different claims for relief. Appellant appears to conflate the two
by suggesting that mootness, which was more directly the result of this
Court’s failure to grant the stay,4 is fundamentally inconsistent with our
failure to grant summary relief. Appellant’s Stay Application, by contrast,
was not dismissed without prejudice. Accordingly, we ascertain no merit to
Appellant’s claim that our rejection of his request for summary relief, without
prejudice, is inconsistent with a finding of mootness.
_______________________
(Footnote Continued)
appeal on the merits on mootness grounds. That does not mean, however,
that every stay of extradition will necessarily be granted.
4
As discussed below, our denial of Appellant’s stay request was, in turn, a
direct result of Appellant’s failure to properly and adequately argue that he
was entitled to such relief.
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We also see no merit in Appellant’s undeveloped claim that the
Commonwealth’s opposition to the stay in its answer to Appellant’s Stay
Application (premised, in part, on the merits of extradition) is fundamentally
inconsistent with its current mootness claim. It is not at all surprising that
the Commonwealth’s strategy changed as the underlying circumstances
attendant to this appeal changed. Indeed, mootness would seem to apply
equally to either party’s claims regarding the merits of the trial court’s
extradition order.
Next, Appellant argues that that this matter presents an exception to
mootness under the reasoning set forth in Sibron v. New York, 392 U.S.
40 (1968).5 Sibron was convicted of a drug offense. In his appeal, he
challenged an order denying his claim that certain evidence had been
admitted in violation of the constitution. After exhausting his appeal in New
York’s appellate courts, Sibron appealed to the United States Supreme
Court. However, it was asserted that Sibron’s constitutional claims had been
rendered moot by the expiration of his sentence. The Sibron Court ruled
that “mere release of the prisoner does not mechanically foreclose
consideration of the merits by this Court.” Sibron, 392 U.S at 51. Instead,
the Court recognized two exceptions to the mootness doctrine, as
summarized by the Commonwealth Court of Pennsylvania in Mistich v.
____________________________________________
5
A companion case to Terry v. Ohio, 392 U.S. 1 (1968).
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Commonwealth, Pa. Bd. of Probation and Parole, 863 A.2d 116 (Pa.
Cmwlth. 2004):
Sibron recognized two possible exceptions to the doctrine of
mootness as a result of completion of a criminal sentence
allowing review on the merits: (1) where the case could not be
brought before the expiration of the sentence and the
controversy was a continuing one; and (2) where under either
state or federal law further penalties or disabilities can be
imposed as a result of the judgment which has been satisfied.
Sibron discussed Pollard v. United States, 352 U.S. 354, 77
S.Ct. 481, 1 L.Ed.2d 393 (1957), in which the Supreme Court
abandoned all inquiry into the actual existence of specific
collateral consequences and in effect presumed that they
existed. “[T]he possibility of consequences collateral to the
imposition of sentence is sufficiently substantial to justify our
dealing with the merits.” Id. at 358, 77 S.Ct. 481.
Mistich, 863 A.2d at 120 n.5.
Appellant contends that the first Sibron exception applies. The
entirety of his argument in this regard is as follows:
The first exception applies where, "a petitioner could not
have brought his case to [this Court] for review before the
expiration of his [confinement]," Sibron[,] 392 U.S. at 51…. This
exception flows from the principle that "a State may not
effectively deny a convict access to its appellate courts until he
has been released and then argue that his case has been mooted
by his failure to do what it alone prevented him from doing."
Id.[]
The first exception clearly applies here. [The]
Commonwealth filed an Answer in opposition to the Appellant's
Application for Stay, and in response[,] [] Appellant's request,
for relief was denied, "without prejudice for Appellant to re-raise
the matter before a panel assigned to this appeal." But for the
Commonwealth's Answer in opposition, the Appellant would not
have been extradited. Thus, under this first exception this
Honorable Court clearly should not deem this matter moot.
Appellant’s Reply Brief at 6-7 (emphasis omitted).
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Appellant’s argument is unconvincing. First, Appellant does not even
analyze the entire Sibron exception at issue. He omits consideration, and
fatally so, of the second requirement, that the “the controversy was a
continuing one.” Mistich, 863 A.2d at 120 n.5. Here, the controversy is not
the underlying criminal charges, or his pre-trial incarceration for such
charges. Rather, the “controversy” at issue is whether the trial court erred
when it ordered Appellant’s extradition to New York. While Appellant may in
fact remain incarcerated in New York, his incarceration in Pennsylvania, by
means of an extradition detainer, is not “continuing.” Id.
Second, Appellant simply restates a proposition we reject on its face.
Appellant’s Stay Application was not denied without prejudice; his request
for summary relief was denied without prejudice. Even if that were not the
case, it is not clear how this matter relates to the first Sibron exception. If
there is such a relationship, Appellant makes no effort to draw one, other
than to state that it is so.
Appellant’s focus on the Commonwealth’s Answer to his Stay
Application in relation to the first Sibron exception is mystifying. Appellant
offers no legal authority, and no logical argument, in support of the notion
that the Commonwealth is not permitted to argue against an application to
stay extradition pending an appeal. We ascertain nothing improper in the
Commonwealth’s behavior in this regard. It was Appellant’s burden to
demonstrate the necessity of granting a stay. It was not the
Commonwealth’s burden to demonstrate otherwise.
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Moreover, Appellant’s Stay Application, while properly invoking
Pa.R.A.P. 1732 (governing “Application[s] for Stay or Injunction Pending
Appeal”), failed to follow the dictates of that rule in a meaningful fashion.
Rule 1732(b) directs that the “application shall also show the reasons for the
relief requested….” The Stay Application, however, provided virtually no
justification for the granting of the stay beyond a boilerplate argument that
Appellant would be prejudiced if the stay were not granted, because “the
demanding state could arrive at any moment to extradite Appellant.” Stay
Application, at ¶ 7.
To obtain a stay pursuant to Rule 1732, an applicant must
make a substantial case on the merits and show that
without the stay, irreparable injury will be suffered.
Additionally, before granting a request for a stay, the court
must be satisfied the issuance of the stay will not
substantially harm other interested parties in the
proceedings and will not adversely affect the public
interest.
Commonwealth v. Melvin, 79 A.3d 1195, 1200 (Pa. Super. 2013) (quoting
Maritrans G.P., Inc. v. Pepper, Hamilton & Scheetz, 573 A.2d 1001,
1003 (Pa. 1990)).
Appellant’s boilerplate argument in his Stay Application did not “make
a substantial case on the merits….” Id. (emphasis added). Appellant
merely noted that he was subject to immediate extradition, with no
discussion of the legal issues relevant to that determination. While
Appellant argued that he would be “greatly prejudiced” if not granted a stay,
Stay Application at ¶ 7, he made no assertion that such prejudice would be
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“irreparable,” Melvin, 79 A.3d at 1200. Nor did Appellant discuss the
potential effect on other parties, or how the granting of the Stay Application
would not “adversely affect the public interest.” Id. Simply put, Appellant’s
Stay Application made no effort to discuss or analyze the applicable law
governing this Court’s determination of whether granting a stay was
appropriate in this circumstance. For all of the above reasons, we reject
Appellant’s claim that the first Sibron exception to mootness applies.
Next, Appellant claims that the second Sibron exception applies. With
respect to that exception, the entirety of Appellant’s argument is as follows:
The second exception "permits adjudication of the merits
of a criminal case where 'under either state or federal law further
penalties or disabilities can be imposed... as a result of the
judgment which... has been satisfied.' Sibron[], 392 U.S. [at]
54 (citing St. Pierre v. United States, 319 U.S. 41 (1943)).
This exception has expanded to the extent that the 'mere
possibility' [of collateral consequences] is enough to preserve a
criminal case from ending 'ignominiously in the limbo of
mootness.'" Id. at 55 (citing Parker v. Ellis, 362 U.S. 574, 577
(1960) (dissenting opinion)). Thus, even if this Court were to
find that the case or controversy ended when [] Appellant was
extradited to the demanding state, the fact that [] Appellant has
remained incarcerated throughout the pendency of this [a]ppeal
triggers the applicability of the continuing collateral
consequences exception to mootness.
Appellant’s Reply Brief at 7.
Appellant’s discussion of this issue is simply inadequate. His summary
conclusion is not supported by the cited authorities. Clearly, Sibron and the
related authorities are discussing mootness in the context of an appeal from
a criminal conviction, not an appeal from an extradition order. The collateral
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consequences discussed in those authorities are collateral to a criminal
conviction. For example, a felony conviction may continue to burden
individuals long after a sentence has expired by dramatically increasing the
consequences of future convictions, divesting that individual of the right to
vote in some jurisdictions, prohibiting access to certain social services
available to non-felons, and/or impairing future employment opportunities.
If Appellant ultimately faces such collateral consequences, it will be because
he is convicted in New York, not because he was extradited to New York.
Indeed, because Appellant is subject to trial in New York, he may still avoid
the collateral consequences of a conviction. Accordingly, the mootness of
the instant appeal does not permanently end Appellant’s opportunity to
escape the collateral consequences of a criminal conviction which has not
yet, to this Court’s knowledge, even occurred. As such, we disagree that the
second Sibron exception applies.
Finally, we are compelled to note that Appellant premises many of his
arguments against a determination of mootness on the fact that he
attempted to preserve the case or controversy at issue by filing his Stay
Application. That application was defective in many regards, as discussed
above. Additionally, this Court’s denial of Appellant’s Stay Application did not
completely divest Appellant of a remedy in Pennsylvania’s Courts. Following
the issuance of our order denying his Stay Application, Appellant failed to
seek reconsideration of the order denying the stay, or by appealing that
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decision to our Supreme Court. By failing to exhaust all available remedies,
Appellant’s claims of injustice are significantly diminished on their face.
In sum, we conclude that every issue raised in Appellant’s brief has
been rendered moot by his extradition to New York. There is no longer any
possibility of this Court’s providing any form of relief to Appellant and, as
such, any opinion issued by this Court would be merely advisory in nature.
Moreover, Appellant has failed to prove any applicable exception to the
mootness doctrine. Accordingly, we dismiss the instant appeal as moot.
Appeal dismissed as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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