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COMMONWEALTH EX REL. SHARPE v. BURKE (12/29/53)

December 29, 1953

COMMONWEALTH EX REL. SHARPE
v.
BURKE



COUNSEL

William J. Woolston, Philadelphia, for appellant.

Armand Della Porta, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

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

Author: Rhodes

[ 174 Pa. Super. Page 351]

RHODES, President Judge.

On March 9, 1939, relator was tried and convicted in the Court of Oyer and Terminer of Philadelphia County on three bills of indictment (Nos. 576, 578, 580, December Sessions, 1938) charging robbery, burglary, and carrying concealed deadly weapons. The sentence on bill No. 576 (armed robbery) was for a term of imprisonment in the Eastern State Penitentiary of not less than ten years nor more than twenty years. At that time relator was on parole from a sentence of not less than one year nor more than twenty

[ 174 Pa. Super. Page 352]

    years to be served in the Philadelphia County Prison. The latter sentence had been imposed on June 27, 1933, by the same court, after trial and conviction, on a bill of indictment (No. 1335, May Sessions, 1933) charging armed robbery. The sentence on bill No. 576 was directed to be effective at the expiration of relator's sentence on bill No. 1335. Relator was not sentenced on bills Nos. 578 and 580.

On January 21, 1952, relator, being confined in the Eastern State Penitentiary, filed a petition for writ of habeas corpus in the Court of Common Pleas No. 4 of Philadelphia County. A rule to show cause was issued. On January 31, 1952, relator filed an amended petition. An answer was filed by the District Attorney of Philadelphia County. On April 4, 1952, the court dismissed the petition on the ground that it was premature as relator was still serving the remainder of the sentence imposed at No. 1335, May Sessions, 1933, whereas the petition related merely to the sentence imposed at No. 576, December Sessions, 1938.

On March 12, 1953, relator filed a second amended petition for a writ of habeas corpus. An answer was filed by the Warden of the Eastern State Penitentiary. On March 20, 1953, a hearing was held before Judge Milner at which relator was present and represented by counsel. Testimony was presented by relator and the Commonwealth.

In his second amended petition relator called to the attention of the court that he had been sentenced on March 9, 1939, to the Eastern State Penitentiary by the late President Judge Harry S. McDevitt on bill No. 576, and that it was provided in such sentence that it was not to be effective until the expiration of the sentence imposed at No. 1335, May Sessions, 1933. On the following day, March 10, 1939, Judge James G. Gordon, Jr., entered an order to the effect that relator,

[ 174 Pa. Super. Page 353]

    having violated his parole, be remanded to the Philadelphia County Prison there to serve the remainder of the sentence at No. 1335, may Sessions, 1933, and thereafter be remanded to the Eastern State Penitentiary to start and begin the sentence of not less than ten years nor more than twenty years imposed on March 9, 1939. This, relator asserted, violated the provision of the Act of June 22, 1931, P.L. 862, § 1, 61 P.S. § 305. Relator contended that the order of service having been provided by law could not be changed; and that therefore he was serving the sentence imposed on bill No. 576, the language and intention of the sentencing judge being immaterial. Judge Milner properly concluded there was merit in this contention, and granted a hearing on relator's second amended petition. However, after hearing, Judge Milner filed a comprehensive opinion wherein he states that except for the error in the designation of the manner of service of the sentence imposed on bill No. 576, there is no merit in relator's petition. An order was thereupon entered remanding relator and remitting the record to the Court of Oyer and ...


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