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UNITED STATES EX REL. FLOWERS v. RUNDLE

July 21, 1970

UNITED STATES of America ex rel. Charles FLOWERS
v.
A.T. RUNDLE, Superintendent


Luongo, District Judge.


The opinion of the court was delivered by: LUONGO

In this petition for writ of habeas corpus, Charles Flowers seeks to overturn his state conviction for statutory rape and for corrupting the morals of a minor (Bill Nos. 1171-1172, October Term 1965, Court of Quarter Sessions, County of Philadelphia). Relator alleges the following violations of his constitutional rights: (1) the trial court lacked subject matter jurisdiction under the Pennsylvania Constitution; (2) the evidence was insufficient to support the verdict; and (3) the arrest was unlawful.

 Relator has exhausted his state remedies. I have reviewed the state court records in this matter, and have concluded that the claims of constitutional violations may be disposed of on the state record without an evidentiary hearing in this court. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 On September 29, 1965, relator invited a twelve year old girl to come to his apartment to cook dinner for him. The girl knew Flowers as a friend of her mother's and accepted the invitation. After dinner, Flowers left the apartment. While he was out, the girl laid down on the bed to rest and removed her outer garments. After a few minutes Flowers returned to the apartment, laid down in the bed next to the girl, and had intercourse with her.

 In response to an anonymous phone call, two police officers went to Flowers' apartment at about 10:00 p.m. After they were admitted by Flowers, the police officers observed the girl in a state of near nudity. The officers then arrested Flowers. *fn1"

 (1) Jurisdiction of the Court.

 At the time of trial (June 3, 1966), the presiding judge, the Honorable Gregory Lagakos, was a judge of the County Court of Philadelphia (now merged in the Court of Common Pleas by the Pennsylvania Constitution of 1968). Relator contends that the County Court lacked jurisdiction to try criminal cases, and therefore his conviction must be set aside.

 Habeas corpus is an appropriate remedy to attack the jurisdiction of a court which entered a judgment of conviction. See Bowen v. Johnston, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 455 (1939); Potter v. Dowd, 146 F.2d 244 (7th Cir. 1944). Whether a state court has subject matter jurisdiction over an offense, however, is a question of state law. It is clear that under Pennsylvania law the County Court of Philadelphia had jurisdiction to try the relator for the crimes he had allegedly committed. 17 P.S. § 694. See Commonwealth ex rel. Burton v. Baldi, 147 Pa. Super. 193, 24 A. 2d 76 (1942); Commonwealth v. Weiner, 67 Pa. Super. 558 (1917). Since relator does not allege any violations of due process which would void the jurisdiction of the County Court, I conclude that he was tried and convicted by a court of competent jurisdiction, and hence, was not deprived of his constitutional rights.

 (2) Insufficiency of the Evidence.

 Sufficiency of evidence is not a constitutional question and hence not cognizable in this court on a petition for writ of habeas corpus. United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S. Ct. 663, 21 L. Ed. 2d 594 (1969). The question under the due process clause of the Fourteenth Amendment is whether there is any evidence to support the conviction. Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960).

 (3) Arrest.

 Flowers contends that his arrest was unlawful because the police lacked probable cause to make it.

 Under Pennsylvania law, an arrest without a warrant is valid only if the arresting officers have reasonable grounds to believe that the accused has committed a felony [ Commonwealth ex rel. McNeair v. Rundle, 416 Pa. 301, 206 A. 2d 329 (1965)], or, in the case of a misdemeanor, if the offense is committed in the ...


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