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COMMONWEALTH ET AL. TISCIO v. BURKE (07/14/53)

July 14, 1953

COMMONWEALTH ET AL. TISCIO
v.
BURKE, WARDEN. (COMMONWEALTH EX REL. TISCIO, APPELLANT, V. BURKE.)



COUNSEL

Harold Caplan, Allentown, for appellant.

Bernard B. Naef, Asst. Dist. Atty., M. Jack Morgan, Dist. Atty., Allentown, for appellee.

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

Author: Rhodes

[ 173 Pa. Super. Page 351]

RHODES, President Judge.

Relator was convicted on three bills of indictment charging burglary and on one bill charging larceny and receiving stolen goods at Nos. 25, 26, 27, and 28, September Sessions, 1938, in the Court of Oyer and Terminer and the Court of Quarter Sessions of Lehigh County. On January 23, 1939, he was sentenced on each conviction to the Eastern State Penitentiary for a term of not less than two and one-half years nor more than five years. It was directed that the sentences be served consecutively. By reason of the allowance of credit for time spent in Lehigh County

[ 173 Pa. Super. Page 352]

Prison awaiting trial, the sentence to be served on bill No. 25 was computed to run from November 23, 1938. There was a separate commitment for each sentence.

Relator was paroled on May 18, 1948, after having served approximately nine and one-half years. On July 8, 1952, he was recommitted to the Eastern State Penitentiary by reason of his conviction of a crime committed while on parole, to wit, operating a motor vehicle after his license had been suspended. He was denied credit against the balance of his maximum sentences for the time spent on parole.

On October 25, 1952, he filed his petition for a writ of habeas corpus in the Court of Common Pleas of Lehigh County. In such petition he contended that the sentence imposed at No. 28, September Term, 1938, was excessive in that the maximum sentence permitted for larceny under the Act of March 31, 1860, § 103, P.L. 382, 18 P.S. § 4807 note, was three years. He further contended that the total of his maximum sentences expired on May 23, 1951, and that consequently he was not on parole at the time of the commission and his conviction of the subsequent offense.

After a hearing, at which relator was represented by counsel, the Court of Common Pleas filed an opinion and entered an order allowing the writ of habeas corpus for the sole purpose of correcting the sentence on bill No. 28; and it was directed that relator be brought before the court for resentence on said bill, and that he be returned to the Eastern State Penitentiary thereafter. Upon his being brought before the court, he questioned the power of the court to correct said sentence because the term in which the sentence was imposed had expired. The court below thereupon refrained from making the correction, and relator appealed.

[ 173 Pa. Super. Page 353]

In concluding the expiration date of the sentence imposed on bill No. 28 to be May 23, 1951, relator apparently employed a method of calculation not in conformity with the Act of June 25, 1937, P.L. 2093, No. 420, § 1, 19 P.S. § 897. The Act provided: 'Whenever, after the effective date of this act, two or more sentences to run consecutively are imposed by any court of this Commonwealth upon any person convicted of crime therein, there shall be deemed to be imposed upon such person a sentence the minimum of which shall be the total of the ...


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