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COMMONWEALTH EX REL. ROBERTS v. KEENAN (01/17/52)

January 17, 1952

COMMONWEALTH EX REL. ROBERTS
v.
KEENAN, SUPERINTENDENT, ALLEGHENY COUNTY WORKHOUSE



COUNSEL

Joseph F. Weis, Jr., Pittsburgh, for appellant.

William S. Rahauser, Dist. Atty., Henry R. Smith, Jr., Asst. Dist. Atty., Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 170 Pa. Super. Page 283]

RHODES, President Judge.

This is a habeas corpus proceeding before us on appeal by relator from an order of the Court of Common Pleas of Allegheny County discharging rule to show cause, denying the writ, and remanding relator to the Allegheny County Workhouse.

On March 5, 1945, relator, being represented by counsel, entered pleas of guilty or nolo contendere to eight separate bills of indictment in the Court of Oyer and Terminer and the Court of Quarter Sessions of Allegheny County. On the same day sentence was imposed, after testimony was taken on the charges in the respective bills. The sentence on bill No. 45, May Sessions, 1944, charging rape, was for a term of imprisonment in the Allegheny County Workhouse of not less than two years nor more than six years; the sentence on bill No. 28, December Sessions, 1944, charging rape, was for a term of imprisonment in the Allegheny County Workhouse of not less than three years nor more than six years, said sentence to begin at the expiration of the sentence imposed at No. 45, May Sessions, 1944; the sentence on bill No. 100, December Sessions, 1944, charging felonious assault and battery, was for a term of imprisonment in the Allegheny County Workhouse of not less than three years nor more than six years, said sentence to begin at the expiration of the sentence imposed at No. 28, December Sessions, 1944; the sentence

[ 170 Pa. Super. Page 284]

    on bill No. 14, December Sessions, 1944, charging assault and battery with intent to commit rape, was for a term of imprisonment in the Allegheny County Workhouse of not less than two years nor more than four years, said sentence to begin at the expiration of the sentence imposed at No. 100, December Sessions, 1944. On bill No. 15, December Sessions, 1944, charging assault and battery with intent to commit rape, the sentence was suspended. On bill No. 27, December Sessions, 1944, charging robbery, the sentence was suspended. On bill No. 99, December Sessions, 1944, charging assault and battery with intent to commit rape, the sentence was suspended. On bill No. 326, February Sessions, 1945, charging fornication and bastardy, the order of the court was that relator pay the lying-in expenses of the prosecutrix, and pay for the maintenance of the child the sum of $3 per week until it reaches the age of seven years, and thereafter $3.50 per week until it reaches the age of fourteen years, and that bond be given with surety to guarantee the payments. The consecutive sentences to be served aggregated not less than ten years nor more than twenty-two years.

On May 24, 1951, relator's petition for writ of habeas corpus was presented in the Court of Common Pleas of Allegheny County. An answer was filed by the District Attorney of Allegheny County, and after hearing, on July 9, 1951, the order of the court was entered. Relator's counsel on this appeal has presented three contentions which he has apparently gathered from the record and relator's various complaints in his petition. As relator had counsel at the time he pleaded guilty, it was necessary to claim some other ground that might prove acceptable as a sufficient averment of a lack of due process or the violation of some constitutional right. No factual allegations have been made

[ 170 Pa. Super. Page 285]

    which set forth a prima facie violation of federal constitutional rights.

Relator first contends that at the time he entered his pleas and was sentenced on March 5, 1945, he denied he was guilty of the offenses charged in the indictments at Nos. 45, May Sessions, 1944, and 326, February Sessions, 1945, based upon the complaints of one Lillian McCaskill, and of the offense charged in the indictment at No. 28, December Sessions, 1944, based upon the complaint of one Frances Stewart. He asserts, due to this alleged inconsistency, it was improper for the sentencing judge to accept his signed pleas and to sentence him on those bills of indictment, and, although there was no request, the judge should have withdrawn the pleas. We observe no fundamental inconsistency between relator's pleas and his testimony taken at the time and contained in the 'plea notes.'*fn1 The testimony of the witnesses who were called clearly established that relator committed the crimes charged in the respective bills of indictment. As to Lillian McCaskill, he merely stated that he had nothing to do 'with this girl that night,' but he did not contradict her testimony that he had raped her. See Com. v. Neff, 149 Pa. Super. 513, 517, 518, 27 A.2d 737. As to Frances Stewart, relator's testimony is merely a contradiction of her testimony as to the initiation of their acquaintanceship. Relator was ...


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