Commonwealth ex rel. Scolio v. Hess

• Decision Date: 23 July 1942
• Docket Number: 258-1942
• Citation: 27 A.2d 705,149 Pa.Super. 371
• Parties: Commonwealth ex rel. Scolio v. Hess, Warden, Appellant
• Court: Pennsylvania Superior Court

27 A.2d 705

149 Pa.Super. 371

Commonwealth ex rel. Scolio v. Hess, Warden, Appellant

No. 258-1942

Superior Court of Pennsylvania

July 23, 1942

Argued April 14, 1942.

Appeal from order of C. P. Erie Co., Nov. T., 1941, No. 77, in case of Commonwealth ex rel. Vincent Scolio v. A. Matthew Hess Warden.

Habeas corpus proceeding.

The facts are stated in the opinion of the Superior Court.

Order entered discharging relator, opinion by Kitts, P. J. Warden appealed.

Error assigned, among others, was the order of the court below in discharging relator.

Appeal dismissed.

Burton R. Laub, District Attorney, with him Paul B. Joslin Assistant District Attorney, for appellant.

Edward E. Petrillo, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Hirt and Kenworthey, JJ.

OPINION

Keller, P. J.

The district attorney of Erie County, acting for the warden of Erie County Prison, has appealed from an order of the court of common pleas of that county, entered pursuant to a writ of habeas corpus, discharging the relator Vincent Scolio, from the custody of the said warden.

The petition for writ of habeas corpus was filed pursuant to the Act of July 1, 1937, P. L. 2664, ^[1] which empowers the judge granting the writ to examine and inquire into the proceedings held and evidence produced before a committing magistrate and to discharge the prisoner, if the proceedings were not conducted in accordance with law or the evidence is insufficient to hold him.

On August 30, 1941, complaint was made by the county detective of Erie County before Alderman Heisler of the City of Erie charging the relator, Vincent Scolio, and Concetta Colagrossi, alias Concetta Scolio, alias Lena Carbone, and Marjorie Miller, alias Marjorie Mobile, jointly, with having unlawfully conspired together to use a certain building, to-wit, 135 West 15th St., Erie, Pennsylvania, for the purpose of prostitution or assignation.

The defendants having been arrested, a hearing was had before the said alderman on Tuesday, September 9, 1941, who, on the same day, after hearing witnesses, returned the case to the next term of the court of quarter sessions.

A regular term of the Court of Quarter Sessions of Erie County was fixed to begin on the second Monday of September, which in 1941 was September 8. The next regular term began on the second Monday of November, that is, on November 10, 1941.

For some reason, which was not explained to us, the trial of cases at the September Term was postponed until the week beginning September 15, 1941. That, however, did not affect the return of cases by justices of the peace, etc., and the case against Scolio and his co-defendants, which was heard on September 9, 1941, was properly returnable to the next term, viz, the November term of court.

On September 15, 1941, nearly two months "next preceding the term .... of .... court, where the offense with which he [stood] charged [was] properly recognizable", ^[2] Vincent Scolio filed in the court of common pleas his petition for writ of habeas corpus, on which President Judge Kitts awarded a writ directed to the warden of the Erie County Prison commanding him to bring the body of said petitioner before the Court on September 24, 1941 at 9:30 o'clock A.M.

At the hearing, a transcript of the testimony taken by the court stenographer before Alderman Heisler was produced. It does not appear from the record certified to us that any other testimony was presented.

On November 10, 1941, the President Judge filed his opinion holding that no prima facie case of guilt had been made out against the relator, Vincent Scolio, and ordered his discharge.

We have carefully read the testimony in the record certified to us and are of opinion that it did not justify the order of the alderman holding the relator for court; and, as nothing more was produced before the court below, that it was not sufficient to warrant his being remanded for trial by a petit jury.

We do not mean to hold that on a hearing before a committing magistrate, or on a habeas corpus hearing, the Commonwealth must produce evidence of such character and quantum of proof as to require a finding by a jury of the accused's guilt, beyond a reasonable doubt. But it should be such as to present "sufficient probable cause to believe that the person charged has committed the offense stated" (United States v. Johns, 4 Dallas 412, 413, 1 Wash. C. C. 363, 1 L.Ed 888); in other words, it should make out a prima facie case...