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COMMONWEALTH v. CEPHAS (11/12/69)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 12, 1969.

COMMONWEALTH
v.
CEPHAS, APPELLANT

Appeal from order of Court of Common Pleas of Philadelphia County, Jan. T., 1969, No. 77, in case of Commonwealth of Pennsylvania v. Harold Cephas, Jr.

COUNSEL

Harold Cephas, Jr., appellant, in propria persona.

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

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Jacobs and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 215 Pa. Super. Page 412]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant brought a "petition for return of his property" in the Court of Common Pleas of Philadelphia County. The property which was the subject of the petition was seized by the police from appellant's apartment, pursuant to a search warrant. On January 19, 1969, Judge Levin held that the warrant was constitutionally invalid and suppressed the use of the property seized as evidence. On January 21, 1969, the instant petition was heard before Judge Meade. Unfortunately, Judge Meade was not informed of Judge Levin's suppression order and was under the impression that the property still was to be used in a criminal proceeding against appellant. Accordingly, he denied the petition.

Though not artfully worded, appellant's petition does allege that the property seized was his own. Therefore, this case should be remanded to the lower court for a hearing thereon. Ungar Buick Co. to Use v. Thum, 104 Pa. Superior Ct. 318, 158 A. 310 (1932); Gensbigler v. Shawley, 162 Pa. Superior Ct. 642, 60 A.2d 360 (1948).

I would reverse the order of the Court of Common Pleas of Philadelphia County and remand this case to that court for a hearing on the petition.

19691112

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