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COMMONWEALTH v. CAREY (06/12/63)

June 12, 1963

COMMONWEALTH
v.
CAREY, APPELLANT.



Appeal, No. 39, Feb. T., 1963, from judgment of Court of Oyer and Terminer of Lackawanna County, May T., 1962, No. 31, in case of Commonwealth of Pennsylvania v. Rocco Carey. Judgment reversed.

COUNSEL

Paul A. McGlone, with him James J. Zaydon, for appellant.

Thomas J. Foley, Assistant District Attorney, with him Joseph J. Cimino, District Attorney, for Commonwealth, appellee.

Before Rhodes, @p.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 201 Pa. Super. Page 294]

OPINION BY MONTGOMERY, J.

The appellant, Rocco Carey, was indicted for the crimes of conspiracy and burglarizing the dwelling house of Walter Shimkus in the City of Scranton on December 6, 1959, and was found guilty of the burglary charge. His motions for a new trial and in arrest of judgment having been refused, he was sentenced. This appeal is from that judgment of sentence.

The errors assigned in his appeal and his contentions concerning them may be grouped in the following categories: (1) his basic rights were violated because the indictment was found without affording him a preliminary hearing; and this procedure was illegal because based upon an untrue fugitive affidavit; (2) wrongful denial of access or permission to use evidence in the hands of the Commonwealth, particularly the prior statements made by the Commonwealth's chief witness; (3) trial errors in admitting incompetent evidence; and (4) the insufficiency of the evidence to support the verdict.

Denial of a Preliminary Hearing

The affidavit referred to above in this connection was that of City Detective Alfred Petrini, who, on April 23, 1962, swore that on December 8, 1961, an information had been laid before a police magistrate of the City of Scranton charging the defendant Rocco Carey with the crime of burglary, and that upon such information a warrant was issued for the arrest of said defendant; and that diligent search and inquiry for him throughout the county and state aforesaid (Lackawanna and Pennsylvania) had failed to accomplish the arrest of appellant, said Rocco Carey. The date of December

[ 201 Pa. Super. Page 2958]

, 1961, recited in that affidavit, was admittedly an error. The record indicates that the correct date on which the information had been laid before the police magistrate was February 1, 1962. It was on that date that seven other participants in the burglary, in entering pleas of guilty to the charges, first implicated the appellant.

Based on said affidavit President Judge HOBAN found that Carey was a fugitive and ordered that an indictment for said crime be submitted to the grand jury without previous arrest and binding over of the defendant. This order was dated April 30, 1962, and pursuant thereto the grand jury considered the matter and returned a true bill on May 3, 1962. Carey subsequently surrendered and entered bail pending trial. Appellant filed a motion to quash the indictment for this reason, and an answer thereto was filed by the District ...


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