Appeal, No. 191, April T., 1955, from order of Court of Common Pleas of Erie County, Feb. T., 1955, No. 214, in case of Commonwealth of Pennsylvania ex rel. Harvey Harold Brockway v. L. P. Keenan, Superintendent, Allegheny County Workhouse. Order affirmed; sentences declared invalid and corrected.
Harvey Brockway, appellant, in propria persona.
Damian McLaughlin, District Attorney and Louis R. Banacci, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 79]
This is an appeal from the order of the Court of Common Pleas of Erie County dismissing a petition for a writ of habeas corpus brought by a prisoner.
May 7, 1954 the petitioner was sentenced on three charges filed in the May Sessions of the Court of Quarter Sessions of Erie County. On each of two charges of involuntary manslaughter, filed to Nos. 5 and 6, he was sentenced to three years in the Allegheny County Workhouse, and on a charge of assault and battery filed to No. 8, he was given an additional sentence of one year. The sentences were made consecutive. As is customary the three sentences were "lumped into a term of seven years by the prison and parole authorities.
The three charges on which the petitioner was sentenced grew out of two deaths and an injury resulting
[ 180 Pa. Super. Page 80]
from an automobile accident. As the two deaths and the injury resulted from one unlawful act, the court had power to impose sentence on only one charge of involuntary manslaughter. It had no power to impose sentence on the other two charges and its attempt to do so is a nullity. Com. v. McCord, 116 Pa. Superior Ct. 480, 488, 489, 176 A. 834 (1935); Com., ex rel., v. Veley, 63 Pa. Superior Ct. 489 (1916); Com. v. Ernesto, 93 Pa. Superior Ct. 339, 348 (1928).
The lower court seems to have recognized the illegality of the second and third sentences, but dismissed the petition for the writ on the ground that the first sentence of three years was not questioned by the petitioner, and as he is now serving a legal sentence his petition for a writ of habeas corpus is premature. The prisoner is, of course, not now entitled to a writ of habeas corpus because he is not now being illegally detained.
He contends however, that his sentences should be corrected, because if he is under a seven year sentence the Parole Board will not consider his application for parole until he has served half of that time, which would be after he served all of his legal three year sentence. Technically, his contention is not correct, but assuming that the ...