Com. v. Weinstein

• Decision Date: 15 November 1954
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Albert WEINSTEIN.
• Court: Pennsylvania Superior Court

Page 235

109 A.2d 235

177 Pa.Super. 1

COMMONWEALTH of Pennsylvania, Appellant, v. Albert WEINSTEIN.

Superior Court of Pennsylvania.

Nov. 15, 1954.

Application for Allocatur Denied Jan. 11, 1955.

Samuel Dash, Asst. Dist. Atty., Michael von Moschizisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellant.

David Kanner, Philadelphia, for appellee.

Before ROSS, Acting P. J., and GUNTHER, WRIGHT, WOODSIDE, and ERVIN, Jj.

WOODSIDE, Judge.

This is an appeal by the Commonwealth from the order of the Court of Quarter Sessions of Philadelphia releasing defendant from his recognizance and discharging him without day on the ground that the Commonwealth had not established a prima facie case at the hearing before the magistrate.

The only question presented to us is whether the defendant can attack the regularity of the magistrate's hearing on that ground after he has given bail 'to wait the action of the Grand Jury.' and is not in custody.

We think he cannot. He was therefore improperly discharged by the court below.

It has long been held that a defendant in a criminal case may not raise a question touching upon the legality of his arrest or the regularity of the proceedings before the magistrate after an indictment is found. Com. v. Brennan, 1899, 193 Pa. 567, 44A. 498; Com. v. Mallini, 1906, 214 Pa. 50, 52, 63 A. 414; Com. v. Dingman, 1904, 26 Pa.Super. 615, 619; City of York v. Hatterer, 1911, 48 Pa.Super. 216, 226; Com. v. Hans, 1917, 68 Pa.Super. 275; Com. v. Keegan (No. 1), 1918, 70 Pa.Super. 436, 438; Com. v. Mazarella, 1926, 86 Pa.Super. 382, 384; Com. v. Fedulla, 1926, 89 Pa.Super. 244, 246; Com. v. Murawski, 1931, 101 Pa.Super. 430, 431; Com. v. Wideman, 1942, 150 Pa.Super. 524, 527, 28 A.2d 801.

These issues, usually raised by motions to quash indictments, led to numerous references in the above opinions as to how questions of illegal arrest and improper procedure before the magistrate can be raised by a defendant in a criminal case. All such discussions are dicta.

In the Keegan, Dingman and Murawski cases, supra, it was suggested that a defendant may raise questions touching the legality of his arrest upon proceedings to be discharged from custody.

In the Hans case, supra, 68 Pa.Super. at page 277, the court said: the defendant had made no attempt to be discharged 'on the ground that he had been illegally committed or held to bail.' (Underscoring supplied.) This is the first suggestion we could find in the cases that a defendant released on bail could raise this question.

In the Fedulla case, supra, 89 Pa.Super. at page 246, it was suggested that there was time prior to indictment 'to challenge the legality of his arrest and being held for trial to answer the charge by a proceeding to be discharged from custody, or to be released from his recognizance and discharged without day.'

In two cases, Com. v. Greenberg, 1939, 136 Pa.Super. 32, 7 A.2d 33 and Com. v. Gates, 1930, 98 Pa.Super. 591 this court quashed appeals from the refusal of the court below to release defendants from their recognizances and discharge them without day on the ground that the order was not final. (Releasing the defendant as was done in the case at bar is, of course, a final order.)

In the Greenberg case, supra, this court, although discussing the merits of the case, made no reference to whether or not the question could be raised by such proceedings after bail had been entered.

In the Gates case, supra, what was said about the question now before us was again dicta, but unlike all the other cases cited above it shows that the question was specifically and carefully considered. Gates, who was charged with a violation of the Vehicle Code of 1929, waived a hearing and entered bail for appearance at the next session of Quarter Sessions. Then before indictment he moved to quash the proceedings on the ground that the committing magistrate was without jurisdiction. Judge Keller, although quashing the appeal, reviewed the authorities and pointed out that they seemed to support the conclusion that the only procedure to raise the question was by a writ of habeas corpus which, of course, could not be used when the defendant was out on bail.

In Com. v. Hill, 1950, 166 Pa.Super. 388, 393, 71 A.2d 812, 815, Judge Fine speaking for this court said: 'It is clear that an infirmity in the arrest, if any there was, should have been raised in a proceeding to be discharged; having posted bond for appearance such defects must be deemed to have been waived.'

In Com. v. Montanero, 1953, 173 Pa.Super. 133, 134, 96 A.2d 178, 179 the defendant had petitioned the court for a discharge prior to indictment, on the ground that his premises were searched under a concededly defective search warrant. This court said, 'The court properly held that, having entered bail, appellee was not entitled to a discharge, and refused that prayer of the petition.'

In Com. v. Wier, not reported but filed to No. 35 October Term, 1953 in this court, the appeal from the refusal of the Berks County Court to grant a writ of habeas corpus was dismissed 'as the relator is not confined in any institution.' The Supreme Court denied an allocatur. At the time the petition for the writ was filed and refused, Wier was in prison in Berks County for...