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December 13, 1958


Appeal, No. 218, March T., 1958, from order of Superior Court, April T., 1958, No. 23, reversing the order of Court of Common Pleas of Lawrence County, Dec. T., 1957, No. 27, M.D., in case of Commonwealth of Pennsylvania ex rel. Sherman K. Levine v. Andrew L. Fair. Order reversed; reargument refused January 8, 1959.


Frank O. Moretti, with him Orville Brown, and Sherman K. Levin, for appellant.

W. Walter Braham, for appellee.

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

Author: Musmanno

[ 394 Pa. Page 264]


In the fall of 1957, an election campaign of almost pyrotechnical intensity crackled and raged in Lawrence County for the office of district attorney. Fiery speeches, inflammatory handbills, radio denunciations kept the political atmosphere at a broiling degree of temperature until the very eve of the election. The incumbent district attorney Perry L. Reeher, who was a candidate for re-election on the Republican ticket, had been indicted for an alleged conspiracy growing out of the primary election, and had been superseded by the Attorney General of the Commonwealth. A former judge of the court of common pleas, W. Walter Braham, entered the battle in behalf of Reeher and levelled considerable fire against Sherman K. Levine, a former district attorney who was supporting Joseph Solomon, the Democratic candidate for district attorney. Mr. Levine unlimbered his oratorical guns on Braham. Reeher blasted at Levine.

Then, on October 30, 1958, there suddenly emerged from the smoke of the campaign battle constable Andrew L. Fair armed with a warrant of arrest for Sherman Levine. The warrant was based on an information signed by Mrs. Ethel Rugh, whose attorney was W.

[ 394 Pa. Page 265]

Walter Braham who was manning the guns for Reeher on the political ramparts, as above observed. The information charged Levine with forgery and the uttering of a forged instrument, all supposed to have happened in July, 1955, twenty-seven months before. The constable found Mr. Levine at his law office and took him into custody. Mr. Levine saw in the seizure a stratagem to cripple his efforts and influence in the election, now only six days away. He immediately petitioned the Court of Common Pleas of Lawrence County for a writ of habeas corpus, protesting that the arrest was a "political plot" and asking for a hearing forthwith. Judge JOHN S. POWERS ordered the issuance of the prayed-for writ and constable Fair delivered Levine into court. The judge set November 1st for a hearing at which time Levine appeared with his two attorneys, Orville Brown and Frank O. Moretti. Mr. Braham appeared technically for constable Fair but in reality he was representing Mrs. Rugh in her capacity as private prosecutrix against Mr. Levine. He had constable Fair testify to Levine's arrest on a warrant duly issued by Alderman James C. Brice of New Castle, he then introduced the warrant of arrest and information, and rested his case.

Mr. Moretti now asked permission to substantiate the allegations in Mr. Levine's petition, but Mr. Braham objected, asserting that the only question before the court was whether Levine had been lawfully taken into custody. The court ruled that since the relator Levine had charged that his arrest was not a legitimate prosecution but a "political plot," it was incumbent on the Commonwealth to produce the evidence which could be submitted to the grand jury on probable cause. Mr. Braham replied that if the court compelled him to proceed against Levine he would ask for a continuance, since he was not presently prepared to

[ 394 Pa. Page 266]

    go forward with the prosecution. The court granted the continuance and set the following Monday, November 4th, for the hearing.

On that day the Commonwealth was represented by Frank Lawley, deputy attorney general, who had come from Harrisburg on the telegraphic request of Mr. Braham. Mr. Braham and Mr. Lawley went into a conference on facts and procedure and, at the termination of the conference, the court called upon the Commonwealth to establish its prima facie case of crime against Levine, thus refuting the charge that he had been arrested not because of a crime committed but in order to hamper and impede him in the political campaign in which he and Braham, as backers of their respective candidates, were now, in dramatic clash, momentarily eclipsing the main contenders.

Mr. Braham refused to produce evidence and asserted that the hearing was "unlawful." Deputy attorney general Lawley, however, accepted it as lawful and declared his willingness to present the Commonwealth's case, based on evidence presumed to be in possession of the private prosecutrix. Mr. Braham demurred to Mr. Lawley's assertion and wanted to know if Mr. Lawley was taking the position that he was "going to force this up at this time." Mr. Lawley, speaking for the Commonwealth, replied: "The court has ruled, Mr. Braham, that the habeas corpus is proper, regardless of what your personal views or my personal views may be on the subject, the court has said that there shall be a habeas corpus hearing. Now on behalf of the Commonwealth, if there are Commonwealth witnesses here to prove the charge that this is a forgery, then let's prove it. If there are not, then the habeas corpus would have to be granted, it's as simple as that."

[ 394 Pa. Page 267]

Mr. Braham expressed his determination not to proceed and the court, in the face of this recalcitrance, discharged the relator. The respondent then appealed to the Superior Court which reversed the action of the Court of Common Pleas of Lawrence County. The relator petitioned this Court for an allocatur, which was granted.

At the hearing before Judge POWERS, it was contended by the nominal respondent, constable Fair, through the attorney for the private prosecutrix, that the court had no jurisdiction under the Act of July 1, 1937, P.L. 2664, to conduct a hearing since there had been no denial of due process in the arrest of Sherman Levine. Section 1 of that Act provides: "In all cases where writs of habeas corpus are granted, the judge granting the writ may inquire and examine into the facts of the case." Standing alone, it would be quite clear that, once the writ issues, the judge granting it is authorized to "inquire and examine into the facts" which necessitated the issuance of the writ. Even without the Act of 1937, a judge would have the right to inquire into the facts which caused the detention of the petitioner. Without that authority the writ of habeas corpus would be meaningless. Of what use would it be to a person deprived of his liberty if he were brought before a judge who had no authority to ascertain whether he was properly detained or not? The question thus is not whether the judge has or has not the right to inquire into the facts of the case, but whether, once it has been ascertained that the prisoner was taken into custody by due process of law, the judge may proceed further to determine if there was abuse of process.

Section 2 of the Act of 1937 provides: "Such examination into the facts of the case shall include an examination by the judge into all the proceedings held and

[ 394 Pa. Page 268]

    evidence produced before a judge, magistrate, justice of the peace, or other officer sitting as a committing judge or magistrate, and if such proceedings shall, after inquiry, be deemed to have been conducted not in accordance with law, or the evidence deemed insufficient, the prisoner shall be discharged."

Here it is obvious that even though a defendant may have been arrested on a warrant properly issued and based on an information duly sworn to and filed, the judge may still inquire as to whether the evidence was sufficient to make out a prima facie case. Since Alderman Brice, who authorized the warrant of arrest, had not conducted a hearing before the writ issued from the Court of Common Pleas of Lawrence County, the attorney for the prosecutrix maintained that Judge POWERS of the court of common pleas had no authority to demand the presentation of evidence in order to determine its sufficiency for submission to a grand jury.

He contended further before Judge POWERS, as indeed he argued before us, that if a judge may hear evidence after arrest and before a preliminary hearing by a magistrate, every arrested person will demand such a hearing. Such a practice, he said, would place an "intolerable burden" on the courts. He illustrated this contention by citing that in Lawrence County there are approximately 200 cases of arrest every term. This illustration is not convincing. If a procedure is authorized and justified under the law, it is no argument to say that such a procedure would place a burden on the courts. The courts are open to do justice under the law, regardless of burden, and every aggrieved person has the right to be heard, especially if he claims he is being illegally deprived of his freedom. Justice is not limited by the size of the courtroom and freedom is not measured by the strength of a judge's back.

[ 394 Pa. Page 269]

The appellee's argument is additionally weak because it is by no means certain that every person arrested under process issuing from a justice of the peace would seek a hearing before a judge. Most defendants would have many reasons for preferring to let matters take their regular course before the minor judiciary.

This whole line of argumentation, however, is at best academic, because the question before us on this appeal is not whether anybody may knock at the door of a judge of the court of common pleas after being arrested, but whether, under the particular circumstances existing in this case, Sherman K. Levine had the right to apply for a judicial hearing.

If, as Mr. Levine charged, he was being made the victim of a "political plot"; if, in reality, a mischief of some kind was afoot to thwart an honest and impartial election, where else could Mr. Levine go but into a court, to seek protection and redress? The private prosecutrix urges upon us that Mr. Levine should have waited until the alderman accorded him a hearing, but if the alderman delayed until after the election (and there was not the slightest weather sign that anyone of the prosecution desired the hearing to take place prior to election day; in fact all signals pointed to an inevitable conclusion that the magistrate's hearing would cool its heels until after election); thus, if the hearing was not to take place until the election was history, and there did in fact exist some devious political plotting as charged by Mr. Levine, the harm against which he protested would be accomplished prior to the hearing and before any possible exoneration.

To have a judicial proceeding after immutable events have irrevocably resolved the issue in dispute is like conducting a diagnosis after the patient has died. A posthumous vindication makes excellent reading as

[ 394 Pa. Page 270]

    an epitaph, but it offers little comfort to the victim who has turned to dust.

The rights of the prosecutrix Mrs. Rugh would in no way have been impaired if she and her witnesses had testified when requested to do so by Judge POWERS. On the contrary, she would have benefited by an acceleration of the criminal processes which she had waited twenty-seven months to initiate. After slumbering for over two years on her rights, she should have welcomed the alarm clock which awakened her to the need for immediate action if her claim was not to die through sheer neglect. Instead - after she was provided with a forum in which to prosecute the man she claimed had wrongfully taken money from her - she preferred to sleep a little longer.

The alleged crime she charged against Mr. Levine arose out of the following fact-situation. Helen McCandless and Fred Rugh, husband of the prosecutrix, were partners in a trucking business in New Castle. On July 28, 1955, Fred Rugh died and Helen McCandless, the surviving partner, wrote out a check for $2846.61, signing the firm name of Fred Rugh. Sherman K. Levine, who was attorney for Mrs. McCandless, endorsed the check as trustee of the McCandless-Rugh partnership, and the check was deposited in the Peoples Bank in New Castle. It appears from the history of the transaction, as related in the appellant's brief, and not refuted by the appellee, that Mrs. Ethel Rugh, as administratrix of the estate of Fred Rugh, instituted several lawsuits in the Court of Common Pleas of Lawrence County on the subject of the McCandless-Rugh partnership assets. As a result of the lawsuits, W. Walter Braham, then Judge of the Court of Common Pleas of Lawrence County, signed an order on November 26, 1955, authorizing depositions in the pending litigation. In the process of the taking of such

[ 394 Pa. Page 271]

    depositions Mrs. McCandless testified under oath that she had signed the $2846.61 check because she claimed this amount as surviving partner. However, she did not cash the check. On the contrary, it was deposited in the Peoples Bank with the specific declaration that the money was not to be paid to anyone without a court order. A suitable notation was made in the records of the bank.

During this period Mrs. Rugh was represented by an attorney Lyon, but in April, 1957, Mrs. Rugh changed attorneys and Mr. Braham began to represent her. He filed two additional civil lawsuits in her behalf, in one of which he named Mr. Levine as defendant. On June 21, 1957, Mr. Levine wrote Mr. Braham offering an amicable settlement of the financial controversy between his client, Mrs. McCandless, and Mr. Braham's client, Mrs. Rugh. In this letter he stated that if no amicable settlement was reached and the court held that there had been no partnership or joint venture between Mr. Rugh and Mrs. McCandless the funds in the bank would be turned over to such person as the court designated. So far as the record shows, Mr. Levine at no time received any part of the sum of $2846.61. Nor, in fact, has anyone else, the fund still remaining intact in the bank and subject to disbursement only on order of the court.

Shortly after District Attorney Reeher was superseded by the Attorney General of Pennsylvania, Reeher applied to this Court for a writ of prohibition against the Attorney General to prohibit him from taking up the functions and duties of the district attorney of Lawrence County. In his petition, Mr. Reeher alleged that Mr. Levine had without legal warrant participated in proceedings before the grand jury. Mr. Levine filed an answer denying ...

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