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

December 29, 1953

COMMONWEALTH EX REL. SELL
v.
BURKE



COUNSEL

Irvin A. Sell, pro se.

Alfred C. Alspach, Asst. Dist. Atty., William C. Storb, Dist. Atty., Lancaster, for appellee.

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

Author: Rhodes

[ 174 Pa. Super. Page 346]

RHODES, President Judge.

Relator was indicted on December 12, 1950, in Lancaster County upon two bills of indictment each charging burglary and larceny.

At the time the true bills were found relator was incarcerated in the Huntingdon County jail from which he and an accomplice made their escape. Upon being apprehended they were convicted of prison breach and sentenced to the Western State Penitentiary. On January 29, 1952, relator was released from that institution and brought to Lancaster County on detainer. At the request of his attorney, relator was not tried at the next session of court which was in March; but he came to trial on June 11, 1952. The jury did not agree and was discharged. He was represented by counsel of his own choice at this trial. His counsel later withdrew from the case, but relator secured other counsel who represented him when he was retried on September 9, 1952, and convicted on both bills of indictment. The Court of Oyer and Terminer of Lancaster County imposed consecutive sentence on the respective bills for terms of imprisonment in the Eastern State Penitentiary

[ 174 Pa. Super. Page 347]

    of not less than five years not more than ten years.

Relator's petition for writ of habeas corpus was filed in the Court of Common Pleas of Lancaster County on December 2, 1952. A rule was issued and answers were filed by the District Attorney of Lancaster County and the Warden of the Eastern State Penitentiary. A hearing was held on December 19, 1952, at which relator was present. He confined himself to arguing his contentions and to the cross-examination of Commonwealth's witnesses. On May 1, 1953, the court filed an opinion and order discharging the rule and dismissing the petition. From the order relator has appealed.

There is no merit in relator's appeal, and the order will be affirmed. The allegations in relator's petition relate principally to alleged errors and irregularities in the trial and to the sufficiency of the evidence upon which he was convicted. These are matters which may be raised on appeal but they do not come within the purview of a habeas corpus proceeding.*fn1 However, we shall briefly discuss the questions raised by the relator.

Relator contends that he was denied his right to a speedy trial because, although indicted in December, 1950, he was not convicted until September, 1952. The conclusive answer to this contention is that such delay was occasioned entirely by relator's own conduct and assent. See Commonwealth v. Zec. 262 Pa. 251, 105 A. 279. He had escaped ...


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