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decided: March 20, 1969.


Appeals from orders of Court of Common Pleas of Philadelphia County, Aug. T., 1968, Nos. 82 and 83, in case of Commonwealth ex rel. Minion Jones et al. v. Edward J. Hendrick, Superintendent.


Bernard L. Lemisch, for appellants.

Samuel T. Swansen and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J. Wright, P. J., and Watkins, J., would affirm the orders below.

Author: Jacobs

[ 214 Pa. Super. Page 103]

On the morning of August 16, 1968, two policemen observed three men on 60th Street at Ludlow Street in West Philadelphia. One man was standing inside a telephone booth on the sidewalk and the other two men, appellants Jones and Taylor, were standing outside the booth. As the officers stopped to investigate, the man in the booth walked over to them and said that appellant Taylor was lost and was trying to locate a certain hotel. Taylor, speaking with a "West Indian accent," told the officers he was looking for a hotel and exhibited a bus ticket and a card upon which the name of the hotel was apparently written. The officer told Taylor that the hotel in question was not in the city, asked him where he was from, and received an unsatisfactory answer. Having been told to be on the lookout for a "flim-flam artist" with a Jamaican accent, the officers decided to take all three men to the police station for investigation. The officers frisked one of the appellants and discovered a roll of "play money" with a ten dollar bill on top. A consensual search of appellant Jones' car yielded two similar rolls of money.

At the police station a detective interviewed Gilbert Holloway, the man who was in the phone booth during the incident. Holloway stated that he had just left a bank at 60th and Ludlow Streets when one of the appellants approached him, showed him a card with an address and asked if he knew where the address was. The individual then "flashed" what Holloway

[ 214 Pa. Super. Page 104]

    thought was a large roll of money, although he did not get a good look at it, and the policemen approached before anything else could be said.

After searching and finding that the appellants had criminal records, the detective swore out a criminal complaint charging Jones and Taylor with being "professional thieves" in violation of section 821 of The Penal Code, which provides: "Whoever, being charged before a magistrate with being a professional thief, burglar or pickpocket, 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 for a term not exceeding ninety (90) days . . . ." Act of June 24, 1939, P. L. 872, § 821, 18 P.S. § 4821. Appellants were adjudged guilty in a summary proceeding before a magistrate and sentenced to imprisonment for ninety days. Their petitions for habeas corpus were denied by the common pleas court below, after a hearing de novo, and this appeal followed. Although the procedural posture of this case is somewhat irregular, the record and briefs before us raise issues which could only be raised on a direct appeal. Since the court below held a hearing de novo, and the district attorney at that proceeding characterized it as "in effect an appeal from a summary conviction . . .," we shall treat this appeal accordingly and decide appellants' contentions on the merits.*fn1

It is initially doubtful whether appellants are within the class of persons subject to criminal liability under section 821 of The Penal Code. Although the detective

[ 214 Pa. Super. Page 105]

    said that he had looked up their criminal records before swearing out a complaint, and appellants' counsel concedes that they had records, there is no indication in the record before us that appellants' records of prior convictions were introduced into evidence either before the magistrate or upon hearing de novo. Indeed, the Commonwealth makes much of the fact that "the magistrate properly held appellants without regard to their criminal records" and that "the only evidence of a criminal record was elicited by appellants' counsel during his examination of [the detective at the hearing de novo] and again in arguing to the lower court." Even ...

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