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COMMONWEALTH EX REL. RUSHKOWSKI v. BURKE (07/17/52)

July 17, 1952

COMMONWEALTH EX REL. RUSHKOWSKI
v.
BURKE, WARDEN, EASTERN STATE PENITENTIARY. APPEAL OF RUSHKOWSKI



COUNSEL

E. Charles Coslett, Wilkes-Barre, for appellant.

Louis G. Feldman, Dist. Atty., Nathan Hyman, Asst. Dist. Atty., Wilkes-Barre, for appellee.

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

Author: Rhodes

[ 171 Pa. Super. Page 2]

RHODES, President Judge.

Relator contends in this appeal from the order of the Court of Common Pleas of Luzerne County,*fn1 remanding

[ 171 Pa. Super. Page 3]

    him after hearing to the Warden of the Eastern State Penitentiary, that he is entitled to discharge from further restraint because (1) he was improperly convicted and sentenced on bill of indictment No. 564-A, February Sessions, 1932, Court of Oyer and Terminer of Luzerne County, not having been given a preliminary hearing and not having been advised as to the nature of the charge against him; (2) he was illegally returned from the State of Georgia by agents of the Pennsylvania Board of Parole; (3) he was relieved from any further obligation to the Commonwealth of Pennsylvania by reason of his entry into the United States Army.

Relator was tried and convicted by a jury on bills Nos. 561-F and 564-A, February Sessions, 1932, charging robbery, in the Court of Oyer and Terminer of Luzerne County; and on bill No. 561-G, February Sessions, 1932, charging burglary and larceny, he entered a plea of guilty. Relator was represented by counsel. On April 18, 1932, he was sentenced to the Eastern State Penitentiary as follows: On bill No. 561-F to a term of not less than ten years nor more than twenty years; on bill No. 564-A to a term of not less than ten years nor more than twenty years; on bill No. 561-G to a term of not less than five years nor more than ten years; the sentences to run consecutively.

On October 3, 1951, relator filed his petition for writ of habeas corpus in the Court of Common Pleas of Luzerne County, whereupon a rule was granted to show cause why a writ should not issue. Answers were filed by the Warden of the Eastern State Penitentiary and the Pennsylvania Board of Parole. After hearing, at which relator appeared and testified, the court below, in remanding relator to the custody of respondent-warden and thereby denying the petition, made the following findings of fact, inter alia: '2. On November

[ 171 Pa. Super. Page 420]

    th, 1942, his sentence was commuted, and later, on December 22nd, 1942, he was released on parole.

'3. On June 9th, 1943, he entered the military service of the United States. Later in the same year he was honorably discharged because of physical disability. He returned to Pennsylvania for a short time ...


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