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COMMONWEALTH EX REL. DOTE v. BURKE (04/15/53)

April 15, 1953

COMMONWEALTH EX REL. DOTE
v.
BURKE



COUNSEL

Alphonse Dote, in pro. per.

Carlon M. O'Malley, Dist. Atty., William J. Kearney, Asst. Dist. Atty., Scranton, for appellee.

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

Author: Rhodes

[ 173 Pa. Super. Page 193]

RHODES, President Judge.

Relator is confined in the Eastern State Penitentiary at Graterford in Montgomery County, Pennsylvania, pursuant to sentence imposed by the Court of Oyer and Terminer of Lackawanna County at No. 1, October Term, 1949. The sentence, which was for an indeterminate period of not less than three years nor more than six years, effective June 11, 1949, was imposed on March 17, 1950, upon an indictment charging burglary to which relator had pleaded guilty on June 15, 1949, before Judge Robinson.

The present habeas corpus proceeding is one of a series of similar actions whereby relator has sought to obtain his release. The first petition for a writ of habeas corpus was filed in the Court of Common Pleas of Montgomery County on September 14, 1950. At the hearing upon that petition relator advised the court that he wished to withdraw his petition. The application was granted. On January 25, 1951, he filed another petition for a writ of habeas corpus in the same court. This was dismissed. On March 1, 1951, he petitioned the Court of Common Pleas of Montgomery County for leave to withdraw his withdrawal of the first petition. A rule was thereupon issued and answer filed by the District Attorney of Lackawanna

[ 173 Pa. Super. Page 194]

County. An alias writ of habeas corpus was thereupon awarded and a hearing had at which testimony was taken. By opinion and order filed by President Judge Knight, on June 22, 1951, the writ was discharged.

Thereafter relator filed a petition for a writ of habeas corpus in the Court of Common Pleas of Lackawanna County at No. 202, November Term, 1951. The alleged ground for relief set forth in this petition was that relator was unlawfully taken from the Eastern State Penitentiary on May 27, 1950, and removed to Rochester, New York, where he was confined in the county jail until June 7, 1950, and then returned to the Eastern State Penitenitary. The District Attorney of Lackawanna County filed an answer to such petition, and it appears therefrom that relator was taken to Rochester by virtue of a writ of habeas corpus ad testificandum issued by the United States District Court for the Western District of New York for the purpose of testifying before a grand jury. No hearing was had upon such petition and answer, and by opinion and order filed October 26, 1951, the petition was dismissed.

Relator did not appeal from any of the above orders. Subsequently, he filed another petition for a writ of habeas corpus in the Court of Common Pleas of Lackawanna County. This is the matter with which we are presently concerned. In such petition he averred, in support of his contention that he is being illegally detained, (1) that at the time he pleaded guilty on June 15, 1949, to the burglary charge the District Attorney of Lackawanna County refused to permit relator's attorney to represent him in court before Judge Robinson; (2) that he was held incommunicado for eleven days and nights before being allowed to see his attorney or any member of his family; and (3) that

[ 173 Pa. Super. Page 195]

    the court lost its power to sentence him after the passing ...


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