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COMMONWEALTH v. DECARLO (09/15/67)

decided: September 15, 1967.

COMMONWEALTH
v.
DECARLO, APPELLANT



Appeal from judgment of County Court of Allegheny County, No. C 144 of 1965, in case of Commonwealth of Pennsylvania v. Louis DeCarlo.

COUNSEL

Louis DeCarlo, appellant, in propria persona.

Edwin J. Martin and Charles B. Watkins, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Montgomery, J., concurs in the result. Wright, J., would affirm on the opinion of Lencher, P. J., in the court below.

Author: Hoffman

[ 211 Pa. Super. Page 52]

On the evening of January 6, 1965, appellant, Louis DeCarlo, was arrested in Horne's Department Store by

[ 211 Pa. Super. Page 53]

    a member of the store's security force. DeCarlo had not stolen any merchandise, nor had he been observed attempting to do so. His previous record of arrests for shoplifting was well-known to the store's security force, however, and he had behaved in a manner which the arresting officer regarded as suspicious.

A criminal complaint was subsequently sworn out against DeCarlo charging that he was a professional thief in violation of § 821 of The Penal Code, which provides: "Whoever, being charged before a magistrate with being a professional thief, burglar or pick-pocket, after having been arrested, if it shall be proven to the satisfaction of the said magistrate, by sufficient testimony, that he was frequenting or attending any place for an unlawful purpose, he shall, upon conviction in a summary proceeding, be sentenced to imprisonment. . . ." 18 P.S. § 4821.

DeCarlo was adjudged guilty in a summary proceeding before a Justice of the Peace, and was sentenced to imprisonment for a term of ninety days. The Allegheny County Court dismissed his appeal, after hearing de novo. The case is now before our Court on appeal from that order of dismissal.

Appellant is concededly within the class of those subject to criminal liability under § 821 of The Penal Code. His record of prior convictions was properly admitted into evidence to establish that fact. As our Court has often stressed, however, "The gravamen of the offense consists not of being a professional thief, burglar, or pickpocket, but of frequenting or attending any place for an unlawful purpose. . . ." Commonwealth v. Bey, 150 Pa. Superior Ct. 93, 27 A.2d 457 (1942) (emphasis supplied); Commonwealth v. Oliver, 152 Pa. Superior Ct. 263, 31 A.2d 588 (1943).

To establish the requisite "unlawful purpose," the court below relied almost entirely on appellant's prior criminal record. After ...


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