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COMMONWEALTH v. GALLAGHER (12/12/62)

December 12, 1962

COMMONWEALTH
v.
GALLAGHER, APPELLANT.



Appeal, No. 281, April T., 1962, from judgment of Court of Quarter Sessions of Mckean County, Oct. T., 1961, No. 44, in case of Commonwealth of Pennsylvania v. Charles D. Gallagher. Judgment affirmed.

COUNSEL

Charles D. Gallagher, appellant, in propria persona, submitted a brief.

Glenn E. Mencer, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Flood

[ 200 Pa. Super. Page 138]

OPINION BY FLOOD, J.

The defendant has appealed from his conviction and sentence for burglary and larceny in McKean County, Pennsylvania.

A residence in McKean County was burglarized on February 10, 1961. The defendant was arrested by the police of Niagara Falls, New York, on February 20, 1961, in connection with certain robberies in New York State. Among certain items of personal property found at his residence were items of property taken in the McKean County burglary.

After the defendant had been convicted of the New York robberies and sentenced to a New York prison, the McKean County grand jury, on October 3, 1961, returned a true bill against him and a detainer was lodged with the New York authorities. On January 24, 1962, the Commonwealth instituted proceedings to secure temporary custody of the defendant for the purpose pose of bringing him to trial in McKean County. The defendant was transferred to the McKean County jail on May 11, 1962, counsel was appointed to represent him on May 21, 1962, and on June 5, 1962, he and an alleged accomplice were tried together before a jury and found guilty. On June 5, 1962, sentence was imposed and on June 6, 1962, the same was modified so as to expressly provide that it should commence upon the expiration of the sentence which the defendant was then undergoing in New York.

1. The appellant first complains that he had no preliminary hearing before a justice of the peace in the district where the crime took place. Since the defendant had left the state when the criminal warrant was issued, he is deemed to have impliedly waived the right to a preliminary hearing. Commonwealth ex rel. Sholter v. Claudy, 171 Pa. Superior Ct. 442, 90 A.2d 343 (1952). When the defendant voluntarily leaves the jurisdiction, the district attorney has the right to present

[ 200 Pa. Super. Page 139]

    a bill before the grand jury during his absence, and a true bill may be found during his absence. Commonwealth ex rel. Blackman v. Banmiller, 405 Pa. 560, 176 A.2d 682 (1962).

2. The appellant also complains that a police officer from Miagara Falls, New York, in testifying as to what he found at the defendant's residence, was permitted to mention, over objection, items of property stolen in New York burglaries. On the meagre record before us it appears that the testimony in question may well have been admissible for the purpose of explaining how the defendant came to be identified and apprehended. Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). In any event the defendant may not complain of testimony concerning other crimes when the several offences become intertwined and inseparable ...


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