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COMMONWEALTH v. WESLEY (10/01/52)

October 1, 1952

COMMONWEALTH
v.
WESLEY



COUNSEL

Charles J. Maloney, John Duggan, Jr., Pittsburgh, for appellant.

Anne X. Alpern, City Sol., Robert Engel, Asst. City Sol., Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 171 Pa. Super. Page 567]

RHODES, Presiding Judge.

Defendant was found guilty, in a summary proceeding before a magistrate, of violating an ordinance of

[ 171 Pa. Super. Page 568]

    the City of Pittsburgh which makes it an offense to keep a disorderly house. The sentence of the magistrate was that defendant pay a fine of $50 and costs, and in default of payment thereof be committed to the Allegheny County Jail for a period of thirty days. The County Court of Allegheny County granted defendant's petition for leave to appeal from the summary conviction.*fn1 The case was heard de novo by the county court which adjudged the defendant 'guilty of the offense of keeping a disorderly house,' and imposed the same sentence as the magistrate had imposed.

On appeal to this Court appellant claims that his summary conviction by a magistrate under the City ordinance was a violation of his right to trial by jury given under Article I, § 6, of the Constitution of Pennsylvania, P.S. No question is raised as to the sufficiency of the evidence to sustain the conviction. The Commonwealth's evidence showed that the small hotel owned and managed by appellant was openly used by unmarried couples, who falsely registered as husband and wife, for immoral purposes. See Warren v. Penn-Harris Hotel Co., 91 Pa. Super. 195, 199.

In the county court appellant did not argue the constitutional question he now raises. However, his petition for leave to appeal to the county court contained an averment that the magistrate 'had no jurisdiction to finally determine the matter,' but only had authority to dismiss the complaint or act as a committing magistrate and hold appellant for the action of the grand jury. The general rule is that matters not raised or considered below cannot be invoked on appeal, even though they involve constitutional questions,

[ 171 Pa. Super. Page 569]

(Com. v. Kramer, 146 Pa. Super. 91, 93, 22 A.2d 46; Com. v. Klick, 164 Pa. Super. 449, 453, 65 A.2d 440); but we think appellant sufficiently raised the general constitutional issue in his petition for appeal to the county court.

Article I, § 6, of the Pennsylvania Constitution provides: 'Trial by jury shall be as heretofore, and the right thereof remain inviolate.' It is appellant's contention that the offense of keeping a disorderly house made punishable by a summary conviction under the ordinance of the City of Pittsburgh is the same offense proscribed by section 511 of the Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4511; that keeping a disorderly house was, and is, an indictable offense, and as such was triable by jury prior to the adoption of the ...


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