Walter Radziewicz, pro se.
Carlon M. O'Malley, District Atty., Ellis Berger, Asst. District Atty., Scranton, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 264]
Relator was indicted, tried, and convicted of receiving stolen goods on several bills of indictment, and sentenced by the Court of Quarter Sessions of Lackawanna County to undergo imprisonment in the Lackawanna County Jail for fixed terms aggregating eight years. The sentences imposed were effective as of October 17, 1945.
On September 17, 1947, relator was transferred from the Lackawanna County Jail to the Eastern State Penitentiary pursuant to an order made by the Department of Welfare upon petition of the Warden of the Lackawanna County Jail. The Court of Quarter Sessions of Lackawanna County approved the petition and order and gave its consent to the transfer. This proceeding was in accordance with the provisions of section 1 of the Act of July 11, 1923, P.L. 1044, as amended by the Act of April 23, 1929, P.L. 640, 61 P.S. § 72. The reason for relator's transfer, as set forth in the warden's petition, was that the warden was 'unable, by reason of the dangerous criminal propensities of Walter Radziewicz and his close association to other felons, who planned a jail break of said prison which was prevented by prompt and timely police action,
[ 169 Pa. Super. Page 265]
to furnish proper and sufficient accommodations for the care, custody, control and safety of the subject under petition and the other inmates of said jail, * * *.' The petition also set forth that, in addition to the warden's inability to control relator for the aforesaid reasons, it was the petitioner's opinion 'by reason of the continued troublesome attitude displayed by said prisoner' that 'he will be a source of constant irritation to the other inmates of said prison * * *.' At the hearing in the court below relator admitted the facts set forth in the warden's petition.
On January 31, 1950, relator filed his petition for a writ of habeas corpus in the Court of Common Pleas of Montgomery County, the Eastern State Penitentiary being located at Graterford in that county. The District Attorney of Lackawanna County filed an answer to relator's petition. Counsel having been appointed for relator, hearings were held on the petition and answer. By opinion filed on May 3, 1950, the writ was discharged; and on October 11, 1950, relator's exceptions were dismissed and the action of the hearing judge affirmed. Relator then appealed to this Court.
It is relator's contention that the punishment for the crime of receiving stolen goods is simple imprisonment; that he may not be required to serve such sentence within the confines of a penitentiary; and that where the punishment prescribed is by 'imprisonment,' without more, it follows that the legal place of confinement is the county jail. The argument which he presents is to the effect that the Act of July 11, 1923, P.L. 1044, as amended, 61 P.S. § 72, permits of the transfer of a prisoner from one penal institution to another only when such transfer is required by reason of physical conditions of the institution itself, and that such transfer cannot be made by reason of the activities, conduct, or condition of the inmates of the institution.
[ 169 Pa. Super. Page 266]
He contends it therefore follows that he should be discharged because imprisonment undergone in the penitentiary is equivalent to a substantially greater period of time served under simple imprisonment in the county jail. See Com. v. Fetterman, 23 Pa. Super. 569; Com. ex rel. Dennis v. Ashe, 161 Pa. Super. 540, 55 A.2d 433; Com. ex rel. Stuckey v. Burke, ...