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March 24, 1958


Appeal, No. 36, Jan. T., 1958, from judgment of Superior Court of Pennsylvania, Oct. T., 1956, No. 283, affirming order of Court of Common Pleas of Bucks County, March T., 1956, No. 136, in case of Commonwealth of Pennsylvania ex rel. Robert E. Hendrickson v. David Myers, Warden. Judgment affirmed.


William J. Woolston, for appellant.

Donald W. VanArtsdalen, District Attorney, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 393 Pa. Page 225]


The appellant-petitioner, Robert E. Hendrickson, was arrested on August 10, 1946, upon four separate

[ 393 Pa. Page 226]

    charges of burglary, larceny and receiving stolen goods. While awaiting trial on these charges he escaped from the Bucks County prison and was recaptured on the day of escape. Subsequently, the appellant entered a guilty plea on the five bills of indictment which charged him with burglary, larceny, receiving stolen goods and prison breach. Prior to sentence appellant admitted the larceny of still another automobile in Washington, D.C. in August 1945, although the charge against him in that instance was "dropped", presumably because of his service in the Navy. The late Judge BOYER sentenced the appellant on one of the burglary charges to a term of imprisonment of not less than 3 nor more than 10 years. Judge BOYER also sentenced appellant to a further and consecutive term of not less than 1 nor more than 2 years on the indictment charging prison breach. Sentence on the other bills of indictment was suspended. At the time of the trial, appellant was 22 years of age.

Within the period of approximately 10 years, the appellant was twice paroled by the Pennsylvania Board of Parole. Each time appellant violated his parole and was returned to prison. The first violation was a technical one; the second involved a violation of the Uniform Firearms Act. The appellant's unexpired prison term will terminate in December 1959.

In April of 1956, appellant filed his petition for a writ of habeas corpus; this was denied by both the lower court and a unanimous Superior Court. An allocatur was allowed by this Court. The petition originally raised several issues, but not this appeal appellant presses only one, namely, the sentence imposed in 1946 was illegal and void because the sentencing Judge was informed of and considered the appellant's Juvenile Court record in imposing sentence. Appellant had been found delinquent when he was approximately

[ 393 Pa. Page 22717]

years of age as the result of a burglary then committed by him. Appellant contends that the use of said Juvenile Court record in the consideration of the aforesaid sentences was in violation of § 19 of the Act of June 2, 1933, P.L. 1433, 11 PS § 261. Section 19 of that Act provides as follows: "No order made by any Juvenile Court shall operate to impose any of the civil disabilities ordinarily imposed by the criminal laws of the Commonwealth, nor shall any child be deemed to be a criminal by reason of any such order or be deemed to have been convicted of crime. The disposition of a child or any evidence given in a Juvenile Court shall not be admissible as evidence*fn* against the child in any case or proceeding in any other Court."

Generally speaking, there are several cogent reasons why juvenile records and evidence given in juvenile proceedings should not be used as evidence against a child in any case or proceeding in any other court. Juvenile Court proceedings are normally informal, and many of the important constitutional and statutory guarantees afforded a defendant in a criminal trial do not apply to a juvenile in a hearing before a Juvenile Court: Holmes' Appeal, 379 Pa. 599, 109 A.2d 523. For these reasons, it would be unjust and illegal to allow the introduction of juvenile records or evidence given in juvenile cases to be later introduced as competent evidence in criminal cases or proceedings in any other court, in the same manner as criminal convictions or evidence taken in criminal proceedings may in certain instances be competent evidence in other criminal proceedings.

The statutory prohibition, however, was not transgressed by the lower Court. Section 19 does not prohibit

[ 393 Pa. Page 228]

    the use of the "disposition of a child or any evidence given in a juvenile court" for any purpose; on the contrary, it bans the use of said order or evidence only when used "as evidence against the child in any case or proceeding in any other Court". Although the Legislature failed to define the word "evidence" in the statute, it is obvious that the Legislature used and intended to use "evidence" in its generally accepted meaning - testimony and matters actually presented at the trial.

Bouvier's Law Dictionary, Third Revision, accurately states: "Testimony is not synonymous with evidence; Harvey v. Smith, 17 Ind. 272; the latter is the more comprehensive term; What. Cr. L. § 783; and includes all that may be submitted to the jury whether it be the statement of witnesses, or the contents of papers, documents, or records, or the inspection of whatever the jury may be permitted to examine and consider during the trial; Will, Cir. Ev. 2; Jones v. Gregory, 48 Ill.App. 230."

Black's Law Dictionary, Fourth Edition, defines "evidence" as "Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention."

The Juvenile Court record was not introduced or presented as evidence in the trial. Moreover, the Juvenile Court record was not considered, even after the trial, to determine a factual issue, i.e., his guilt or innocence of the crimes with which he was charged; on the contrary, the juvenile record was taken into consideration by the trial Judge after the appellant had pleaded guilty and then only for the purpose of imposing a fair, proper and just sentence.

[ 393 Pa. Page 229]

In Holmes' Appeal, 379 Pa., supra, former Chief Justice STERN, speaking for the Court, said (pages 607-608): "... In Williams v. New York 337 U.S. 241, the court pointed out that, as distinguished from the situation where the question for consideration is the guilt of a defendant, it has always been the right of a court in sentencing to consider information concerning the defendant's past life, health, habits, conduct, and mental and moral propensities, even though such information is obtained outside the courtroom from persons whom the defendant has not been permitted to confront or cross-examine. The court said: (p. 247) 'Highly relevant - if not essential - to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.' And further (p. 249): 'Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information.'"

As Judge HIRT said in his able opinion (182 Pa. Superior Ct. 169, 173): "The judge was entitled to all of the material facts to inform him as to what kind of an offender he was dealing with in determining the appropriate penalty. Commonwealth v. Petrillo, 340 Pa. 33, 47, 16 A.2d 50."

[ 393 Pa. Page 230]

In Commonwealth v. Petrillo, the Court said - with respect to cases other than first degree murder - "... In determining what the penalty shall be after convictions in criminal cases, courts have a wide latitude in considering facts, whether or not these facts are produced by witnesses whom the members of the court see and hear. In many jurisdictions courts in determining proper sentences consider official records and the reports of probation officers, psychiatrists and others."

Commonwealth v. Johnson, 348 Pa. 349, 35 A.2d 312, reaffirmed the above quoted principle of law enunciated in the Petrillo case, and added the following (page 354): "Any other rule than the one thus enunciated would be an impracticable one for courts to apply in exercising their discretionary power, within statutory limits, to impose appropriate sentences on convicted defendants, in the vast majority of criminal cases. A judge whose duty it is to determine the proper sentence imposed on those convicted of crime cannot be expected to limit himself to only that which appears in the record of the trial of the prisoner. It is to the benefit of society and it may be of benefit to the prisoner, to have the sentencing judge consider facts other than those adduced at the trial. Such facts might militate in a prisoner's favor, or they might militate against him."*fn**

In Commonwealth ex rel. Czarnecki v. Stitzel, 179 Pa. Superior Ct. 80, 115 A.2d 805, the Court said (pages 82-83): "A judge faces a grave responsibility in ...

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