Robert H. Holland, Philadelphia, for appellant.
Ernest L. Green, Jr., Asst. Dist. Atty., and Raymond R. Start, Dist. Atty., Media, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 455]
One of the reasons assigned by the learned court below for denying appellant's petition for a writ of habeas corpus is that 'The defendant had been before the Court on two prior occasions and had never raised this question'; i. e., that he had entered a plea of guilty to robbing a bank, without the benefit of counsel.
In Commonwealth ex rel. Holly v. Claudy, 171 Pa. Super. 340, 341, 90 A.2d 253 (allocatur refused; certiorari denied by the Supreme Court of the United States, 73 S.Ct. 501), we approved of and adopted the following from the opinion of the learned president judge of the court below: 'It does not seem reasonable that a defendant in the Penitentiary under sentence can assert additional reasons for a third writ, reasons which, if they are true, existed when the former petitions were presented and acted upon.' But the Supreme Court of the United States has held that, while the denial of a prior petition for a writ of habeas corpus 'is not without bearing or weight when a later habeas corpus application raising the same issues is considered', Price v. Johnston, 334 U.S. 266, 289, 68 S.Ct. 1049, 1062, 92 L.Ed. 1356, the principle of res judicata does not apply. And, since it appears that the failure
[ 172 Pa. Super. Page 456]
to appoint counsel was not raised at either of the prior hearings, we will consider the present petition on its merits.
The chief burden of petitioner's complaint is that when he pleaded guilty to the robbery charge on January 15, 1934, he was told by MacDade, P. J., the sentencing judge, that if he were furnished with official confirmation of the fact that petitioner had been sentenced by the Supreme Court of the District of Columbia to a term of imprisonment of from thirteen to fifteen years, he would make the sentence of eight to twenty years in the Eastern State Penitentiary, which he then imposed, concurrent with the sentence which the prisoner was then serving. On February 12, 1934, petitioner was taken back to the District of Columbia, and on August 28, 1934, was transferred to Alcatraz Island, California, where he served until January 11, 1940. He was then transferred to the Federal Penitentiary at Fort Leavenworth, Kansas, where he remained until December 10, 1942, when he was transferred to the Federal Penitentiary at Lewisburg, Pennsylvania, and subsequently to the Eastern State Penitentiary on December 11, 1942, to begin serving the sentence here complained of.
On February 5, 1944, petitioner escaped from the Eastern State Penitentiary, was apprehended, and on February 11, 1944, was sentenced by Judge George G. Parry to serve an additional term of five to ten years for prison breach. On October 24, 1945, he was transferred to the Philadelphia County Prison and escaped from that institution on February 10, 1947. He was apprehended and on the following day was sentenced by Judge John A. Mawhinney to serve an additional sentence of eight to sixteen years in the Eastern State Penitentiary for prison breach and armed robbery.
[ 172 Pa. Super. Page 457]
On September 28, 1951, the sentence by Judge MacDade, referred to by relator as one of 'alternative ambiguity,' was changed by Judge Sweney on the issuance of the first writ, after consultation with the other members of the court, to run concurrently with the federal sentence. But petitioner contends that since the original sentence was void ab initio, he should be discharged from confinement for having committed 'some collateral offenses in the nature of prison breach.' But even if the original sentence imposed by Judge MacDade should be held to be invalid ab initio, relator would still have to institute proceedings in Philadelphia County before he could be ...