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FREEMAN APPEAL (06/13/68)

decided: June 13, 1968.

FREEMAN APPEAL


Appeals from orders of Court of Common Pleas of Delaware County, No. 10124 of 1967, and Juvenile Court of Delaware County, No. 12653 of 1967, in cases of Commonwealth ex rel. Roger Freeman and James Harrison v. Superintendent of State Correctional Institution at Camp Hill; and in re Moses Coles et al.

COUNSEL

Jack Brian, with him Thomas P. Hamilton, Jr., and Richard, Brian & DiSanti, for appellants.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 212 Pa. Super. Page 424]

The appeals combined here arise out of an alleged attack on a girl on January 28, 1967. The girl stated that she had been grabbed by five boys, put into a car, and forced to have sexual intercourse with three of them against her will.

As a result of an investigation, the Delaware County police obtained statements from appellants William Coles and Leon Hopkins on February 5, 1967, and from appellant Roger Freeman on February 6, 1967.

Charges were filed in the Juvenile Court of Delaware County on March 2, 1967, stating that the five appellants took the girl into a car and that appellants William Coles, Moses Coles, and Roger Freeman had sexual intercourse with her against her consent.

On July 19, 1967, appellants appeared in the Juvenile Court of Delaware County on the above charges.

[ 212 Pa. Super. Page 425]

At the conclusion of the hearing, the Juvenile Court adjudged all five appellants delinquent and committed them to Camp Hill.

Appellants Moses Coles, William Coles, and Leon Hopkins filed petitions for Writs of Habeas Corpus on August 9, 1967, and appellants Freeman and Harrison filed petitions for Writs of Habeas Corpus on August 18, 1967. The lower court, sitting as a Court of Common Pleas, held a hearing on the above petitions on September 11, 1967.

At that hearing, counsel for appellants stated that they desired to put on record their reasons in support of the petitions, because the lower court had indicated that the petitions were not self-sustaining. After this hearing had commenced, the court interrupted the taking of testimony, dismissed the petitions, and stated that all appellants were certified to the district attorney for prosecution in the Court of Quarter Sessions. An order to this effect was then entered, and each of the appellants was indicted for rape the same day.

Bills of Indictment

Appellants first contend that the bills of indictment must be quashed.

Under the Act of June 2, 1933, P. L. 1433, ยง 18, 11 P.S. 260, a judge in juvenile court may certify any case involving a child above the age of 14, charged with a crime punishable by imprisonment in a state penitentiary, to the district attorney ". . . if, in his opinion, the interests of the State require a prosecution of such case on an indictment, . . ." However, before certification is permitted, our statutory rules and the constitutional standards set forth in Kent v. United States, 383 U.S. 541 (1966), must be followed.

In the case at bar, appellants were adjudged delinquent at the July 19, 1967 hearing, and were committed

[ 212 Pa. Super. Page 426]

    to Camp Hill. Our Supreme Court clearly stated in Holmes Appeal, 379 Pa. 599, 109 A.2d 523 (1954), that certification cannot be made ". . . after the Juvenile Court had made an adjudication of delinquency. . . ." at 605. These appellants had already been adjudged delinquent and no order had been entered vacating the commitment orders. The lower court, therefore, had no authority to certify the case to the district attorney at a later date.

Moreover, the lower court judge at the time of the certification orders, was sitting as a judge of the Court of Common Pleas to hear oral arguments on the petitions for Writ of Habeas Corpus. Since the above Act provides that only a judge in juvenile court may certify a case to the district attorney for further prosecution, it was improper for the judge in the instant case, sitting as a judge of the Court of Common Pleas, to so certify. The mere fact that the same judge sat in both courts is irrelevant. In many smaller counties, it is ...


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