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COMMONWEALTH v. DEWAN (07/17/56)

July 17, 1956

COMMONWEALTH
v.
DEWAN, APPELLANT.



Appeal, No. 202, Oct. T., 1955, from judgment of Court of Quarter Sessions of the Peace of Montgomery County, Feb. T., 1954, No. 228, in case of Commonwealth v. Joseph DeWan. Judgment affirmed.

COUNSEL

H. Lester Haws, with him Haws & Burke, for appellant.

Nicholas H. Larzelere, Assistant District Attorney, with him Bernard E. DiJoseph, and J. Stroud Weber, District Attorneys, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Gunther

[ 181 Pa. Super. Page 205]

OPINION BY GUNTHER, J.

Appellant was indicted and convicted under the Act of May 27, 1949, P.L. 1900, section 1, added to The Penal Code of 1939, 18 PS ยง 4418, for malicious loitering or malicious prowling at the Nurses Home of Montgomery County Hospital, Norristown, Pa. The trial was conducted before Honorable George C. Corson without a jury, the right to a jury trial having been previously waived. From a verdict of guilty and a sentence of thirty days imprisonment in the Montgomery County Prison, appellant has filed this appeal.

On the night of March 12, 1954, at about 7:15 P.M., two nurses were disturbed by noises in a narrow private passageway running along the rear of the nurses' home between the building and the fence line of the property next door. At this point there was a tree just on the other side of the home property line high enough to enable one to look into the windows of the second and third floors of the nurses' home. They heard the cracking of dead twigs on the outside of the window. One of the nurses went to the adjoining bathroom from which she observed the figure of a man in front of the

[ 181 Pa. Super. Page 206]

    nursing arts laboratory door. She testified that he then darted around the corner of the building. About the same time, one of the dieticians also heard sounds in the passageway, and a technician, who was in her room with the window partly opened, said she also heard a thud and later on the firing of a shot.

The police were called immediately by telephone and a radio car arrived at the scene about 7:30 P.M. One policeman proceeded to one end of the passageway and the other covered the opposite end. The first policeman covering the passageway nearest to the tree heard a thud and saw the figure of a man at the base of the tree. When he called out to halt, the figure ran toward the other end of the passageway. The officer fired a warning shot into the air but the fleeing man continued running and, while so fleeing, ran into the arms of the other officer approaching from the opposite end of the passageway. The man apprehended was the appellant, Joseph DeWan. His first statement to the police upon apprehension was that he be given a break because if he went down to the station again, he would go to jail. Apparently this was in reference to appellant's prior conviction of open lewdness and indecent exposure for which he received probation.

At the time of arrest, no other person appeared to be in the vicinity of the nurses' home. The tree at the base of which appellant was first seen by the police officer was opposite the window of one of the nurses' rooms occupied for dwelling purposes. The officer testified that the thud he heard apparently was caused by someone jumping down from the tree opposite the window of the nurse who first heard the commotion outside. The officer did not lose sight of the ...


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