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COMMONWEALTH EX REL. HEATON v. HARVEY. (09/20/60)

September 20, 1960

COMMONWEALTH EX REL. HEATON, APPELLANT,
v.
HARVEY.



Appeal, No. 75, Oct. T., 1960, from order of Court of Common Pleas of Blair County, June T., 1959, No. 193, in case of Commonwealth ex rel. Melvin T. Heaton v. John E. Harvey, Warden. Order affirmed.

COUNSEL

John Woodcock, Jr., for appellant.

Blair L. McKillip, Jr., Assistant District Attorney, with him Frank B. Warfel, District Attorney, for appellee.

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

[ 193 Pa. Super. Page 316]

OPINION PER CURIAM

Order affirmed on the opinion of the Court below.

ING OPINION BY MONTGOMERY, J.:

Relator was arrested on teletype information without a warrant on June 24, 1959. He was held in the Altoona City Jail until July 9. On that day an information was made before a local magistrate charging him under the name of Melvin T. Heaton with having escaped from State Prison of North Carolina on June 17, 1959, and thereby becoming a fugitive from justice. The record of the magistrate shows:

"July 9, 1959, warrant issued to Det. Sgt. R.C. Sell.

"July 9, 1959, Defendant brought before Alderman and requested hearing be waived." However, the testimony of Police Officer Sell indicates relator was never taken before the magistrate: (T. 2) "Actually he wasn't taken into the office. We stopped there and the charges

[ 193 Pa. Super. Page 317]

    were filed, and the defendant notified us that he wanted to waive the hearing, there was no reason for him to have a hearing here, that he knew he was going back to North Carolina. So other than his own oral statement that he wanted to waive the hearing was the only statement that was made." The testimony of the other Police Officer Zeigler is the same: (T. 6) "Q. When the defendant, Melvin Heaton, was taken to Alderman Consiglio's Office at which time a warrant was procured for him and a hearing offered to him what did he say or do? A. He suggested that he didn't need a hearing and didn't want a hearing, he was in the back seat of the car with me and he talked to me relative to a hearing and he said he did not want a hearing, that he knew that he was going back. Q. Well, then did he indicate to you he waived a hearing? A. Yes, he waived the hearing in front of the office." (T. 7) "A. Yes, we told him he could have a hearing in front of the office. He was handcuffed to me in the back seat."

It appears further that a "Warrant for Detention of Fugitive from Justice" dated June 24, 1959, and signed by W. F. Bailey, Director, North Carolina State Prison Department, for the arrest of a Melvin T. Heaton for an escape on June 17, 1959, was received by the Altoona City Police Department but the date of its receipt by that Department is not disclosed by the record. However, there was no demand made upon the Governor of this Commonwealth by the Governor of North Carolina, nor was there any warrant issued by the Governor ...


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