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decided: September 11, 1969.


Appeal from order of Court of Quarter Sessions of Lancaster County, June T., 1962, Nos. 146, 148, 154, and 254, in case of Commonwealth of Pennsylvania v. Jack B. Pifer.


Menno B. Rohrer, for appellant.

Henry J. Rutherford, Assistant District Attorney, for Commonwealth, appellee.

Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 215 Pa. Super. Page 125]

Order affirmed.


Order affirmed.

Dissenting Opinion by Hoffman, J.:

On August 8, 1962, appellant pleaded guilty to bills charging him with public indecency, indecent assault, and assault with intent to ravish. Before he was sentenced, a commission was appointed to examine appellant in accordance with the Act of May 25, 1937, P.L. 808, § 3, as amended (repealed) [hereafter referred to

[ 215 Pa. Super. Page 126]

    as the "Dallas Act"].*fn1 Notice of this examination was given to appellant, his mother and stepfather. Appellant was found to be "mentally defective" and was committed to the State Correctional Institution at Dallas until further order of the court.

Thereafter, the Superintendent at Dallas requested that appellant be transferred under the Act of May 31, 1919, P.L. 356, § 1, as amended, 61 P.S. § 81.*fn2 Another

[ 215 Pa. Super. Page 127]

    commission was appointed to examine appellant, apparently in accordance with The Mental Health Act of 1951, Act of June 12, 1951, P.L. 533, art. III, § 327, as amended (repealed).*fn3 Notice was again given to

[ 215 Pa. Super. Page 128]

    appellant, his mother and stepfather. Appellant was represented by his present counsel. Appellant was found to be "mentally ill and of criminal tendency" and was committed to Farview State Hospital.

Appellant, however, is still subject to his Dallas commitment, because under the Mental Health and Mental Retardation Act of 1966, he will be returned to Dallas or a like penal institution when it is determined that his condition no longer warrants commitment at Farview. Act of October 20, 1966, Special Sess. No. 3, P.L. 96, No. 6, art. IV, § 411, 50 P.S. § 4411 (Supp. 1969).

Appellant filed a P.C.H.A. petition, attacking his Dallas commitment on the grounds that he was denied due process of law. The P.C.H.A. court denied his petition without a hearing. This appeal followed.

Appellant's indeterminate commitment, pursuant to a second proceeding under the "Dallas Act," is criminal punishment, Commonwealth v. Williams, 432 Pa. 44, 61, 246 A.2d 356 (1968), which could possibly exceed the fixed maximum he might otherwise have

[ 215 Pa. Super. Page 129]

    received. Accordingly, the procedure for commitment under the "Dallas Act" is governed by the rules of Specht v. Patterson, 386 U.S. 605 (1967), and Commonwealth v. Dooley, 209 Pa. Superior Ct. 519, 232 A.2d 45 (1967).

In Specht and Dooley, persons convicted of crimes were subjected to a second proceeding under sexual offender acts, and sentenced to indeterminate terms designated as criminal punishment.

The Court in Specht quoted Gerchman v. Maroney, 355 F. 2d 302, 312 (3rd Cir. 1966) for the rule applicable to such proceedings: "'It is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial. . . .'" Specht v. Patterson, supra at 609-610.

The Court amplified the Gerchman rule as follows: "Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed." Id. at 610.

Hence it is incumbent upon us to determine whether appellant's commitment violated the principles set forth in Specht and Dooley. The record, however, in this case is silent on this question. We have no notes of testimony before us. Rather, the only evidence presented to the P.C.H.A. court, which denied appellant's

[ 215 Pa. Super. Page 130]

    claim without a hearing, is appellant's commitment papers to Farview. It is impossible therefore to pass on appellant's due process claims without testimony which would establish whether appellant was permitted to testify, to confront the witnesses against him, to cross-examine those witnesses, and to offer evidence of his own.

*fn1 Formerly 61 P.S. § 541-3. This Act is variously known as the "Huntingdon Act" and the "Dallas Act." The Act of July 29, 1953, P. L. 1440, § 6, 61 P.S. § 542.6, made 61 P.S. § 541-3 applicable to Dallas. For convenience, I shall refer to the Act as the "Dallas Act." "When any male person over the age of fifteen years is convicted of crime before any court . . . and such person is, in the opinion of the . . . superintendent . . . of the institution where maintained, so mentally defective that he should be cared for and maintained in the [State Correctional Institution (at Dallas)], such superintendent . . . shall make application . . . to the court having jurisdiction of the charge against such person, which court, upon the presentation of such petition . . . shall order an inquiry by a psychiatrist and a psychologist or by two qualified physicians as now provided by law, who shall immediately examine the said person and make written report of its findings to the court. If, in the opinion of the psychiatrist and psychologist or the physicians, the person so committed or convicted or held is mentally defective and has criminal tendencies, whether or not coupled with mental instability, he or they shall so state in the report of their examination to the court. The court may, in its discretion, summon other witnesses and secure further evidence. If the court is then satisfied that the person thought to be mentally defective is not insane, nor can be classified as an idiot or imbecile by recognized psychological tests nor a psychopath or an infirmary case, though in fact mentally defective with criminal tendencies, the court shall order the commitment or transfer of such person to the [State Correctional Institution (at Dallas)]. . ."

*fn2 "Whenever any convict or person is confined in any . . . penal institution, under conviction or sentence of a court, . . . and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to . . . provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court shall recommit him or her to the institution from which he or she was removed."

For the present purposes, the apparent error is of no consequence.

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