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COMMONWEALTH v. HAWKINS (10/16/74)

decided: October 16, 1974.

COMMONWEALTH
v.
HAWKINS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, Nos. 1470 to 1477, inclusive, affirming judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 516 and Feb. T., 1971, Nos. 426, 427 and 428, 431 to 434, inclusive, in case of Commonwealth of Pennsylvania v. Leroy Hawkins.

COUNSEL

Harold L. Randolph, for appellant.

William E. Gibbons, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Mr. Justice Nix took no part in the consideration or decision of this case. Opinion in Support of Per Curiam Order by Mr. Justice Roberts. Mr. Chief Justices Jones and Mr. Justice Eagen join in this opinion. Opinion in Support of Reversal by Mr. Justice Pomeroy, Joined by Mr. Justice O'Brien and Mr. Justice Manderino.

Author: Per Curiam

[ 458 Pa. Page 31]

The order of the Superior Court is affirmed by an evenly divided Court insofar as it affirms the judgments of sentence of the Court of Common Pleas of Philadelphia County at Nos. 427, 431, and 433 February Term, 1971.

The order of the Superior Court is unanimously reversed insofar as it affirms the judgments of sentence

[ 458 Pa. Page 32]

    of the Court of Common Pleas of Philadelphia County at No. 516 November Term, 1970, and Nos. 426, 428, 432, and 434 February Term, 1971, and the judgments of sentence therein are reversed.

Disposition

Order of Superior Court in Nos. 427, 431 and 433, Feb. T., 1971, affirmed; order of Superior Court and judgments of sentence in No. 516, Nov. T., 1970, and Nos. 426, 428, 432, and 434, Feb. T., 1971, reversed.

Opinion in Support of Per Curiam Order by Mr. Justice Roberts:

For the reasons stated in the Opinion in Support of Reversal, appellant's failure to comply with his contractual duties to procure and install grave markers did not constitute fraudulent conversion. However, in my view, appellant's refusal to remit monies specifically earmarked for cemetery fees did, on this record, violate the statutory proscription. Hence, I support the affirmance of the judgments of ...


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