Appeal, No. 74, Oct. T., 1954, from order of Court of Quarter Sessions of Philadelphia County, Sept. T., 1953, No. 8, in case of Commonwealth of Pennsylvania v. Albert Weinstein. Order reversed.
Samuel Dash, Assistant District Attorney, with him Michael von Moschzisker, First Assistant District Attorney and Richardson Dilworth, District Attorney, Philadelphia, for appellant.
David Kanner, Philadelphia, for appellee.
Before Ross, Gunther, Wright, Woodside and Ervin, JJ. (rhodes, P.j. and Hirt, J., absent).
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. Thomas Brennan, 193 Pa. 567, 44 A. 498 (1899); Com. v. Mallini, 214 Pa. 50, 52, 63 A. 414 (1906); Com. v. Dingman, 26 Pa. Superior Ct. 615, 619 (1904); York City v. Hatterer, 48 Pa. Superior Ct. 216, 226 (1911); Com. v. Hans, 68 Pa. Superior Ct. 275 (1917); Com. v. Keegan (No. 1), 70 Pa. Superior Ct. 436, 438 (1918); Com. v. Mazarella, 86 Pa. Superior Ct. 382, 384 (1926); Com. v. Fedulla, 89 Pa. Superior Ct. 244, 246 (1926); Com. v. Murawski, 101 Pa. Superior Ct. 430, 431 (1931); Com. v. Wideman, 150 Pa. Superior Ct. 524, 527, 28 A.2d 801 (1942).
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 ...