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COMMONWEALTH v. GARY (09/16/60)

September 16, 1960

COMMONWEALTH
v.
GARY, APPELLANT.



Appeal, No. 173, Oct. T., 1960, from judgment of Court of Quarter Sessions of Philadelphia County, Aug. T., 1959, No. 1608, in case of Commonwealth of Pennsylvania v. Haddie Mae Gary. Judgment reversed.

COUNSEL

Cecil B. Moore, for appellant.

Arlen Specter, Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Gunther

[ 193 Pa. Super. Page 112]

OPINION BY GUNTHER, J.

Defendant, Haddie M. Gary, was indicted at 1608 August Sessions, 1959, charging the offense of immoral practices. The case was tried without a jury by the court below. At the conclusion of the trial, defendant was found guilty, sentence suspended, and ordered to pay the costs of prosecution. This appeal followed.

The Commonwealth contends that the appeal should be dismissed because no post-conviction motions for a new trial or in arrest of judgment were filed. We have stated repeatedly that matters not properly raised in the court below cannot be invoked on appeal. Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530; Commonwealth v. Aikens, 179 Pa. Superior Ct. 501, 118 A.2d 205; Commonwealth v. Pittman, 179 Pa. Superior Ct. 645, 118 A.2d 214. However, because the factual matters here raised seem to be one of first impression and because of the extraordinary circumstances here involved, we have concluded to dispose of

[ 193 Pa. Super. Page 113]

    the appeal on its merits. See Commonwealth v. Savor, 180 Pa. Superior Ct. 469, 119 A.2d 849.

The indictment charged that the defendant "did solicit one Herbert Rhodes for the purpose of masturbation, whereby she, the said Haddie Mae Gary, on or about the said date did seek from said Herbert Rhodes a certain sum of money in return for which she offered to commit masturbation upon the private parts of the body of the said Herbert Rhodes to the great damage, injury and oppression of the said Herbert Rhodes and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania:"

In support of the bill of indictment, the prosecuting officer testified that on May 23, 1959, he called a massage parlor located at 3621 Germantown Avenue in the City of Philadelphia and made arrangements for a massage for two o'clock in the afternoon. He arrived at the parlor at approximately 1:55 P.M. and he was greeted by the defendant. She took him to a room adjacent to the waiting room and told him to take off all his clothes and get on the table. While there were other women who worked there, and also men waiting in the waiting room, no one was present in this room except the witness and the defendant. He was supplied with a large bath towel to cover himself and defendant left the room while the witness undressed. Defendant came back in about five minutes and began to give the witness a massage. During the course of the massage, defendant ran her hand over his private parts three or four times. The witness ...


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