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COMMONWEALTH EX REL. TISCIO v. MARTIN. (01/17/56)

January 17, 1956

COMMONWEALTH EX REL. TISCIO, APPELLANT,
v.
MARTIN.



Appeal, No. 3, Oct. T., 1956, from order of Court of Common Pleas of Lehigh County, Sept. T., 1955, No. 124, in case of Commonwealth of Pennsylvania ex rel. Nicholas Tiscio v. Frank G. Martin, Warden, Eastern State Penitentiary, and Pennsylvania Board of Parole. Order affirmed.

COUNSEL

Nicholas Tiscio, appellant, in propria persona.

No argument was made nor brief submitted for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ross

[ 180 Pa. Super. Page 464]

OPINION BY ROSS, J.

This habeas corpus proceeding involves the question of venue. The Court of Common Pleas of Lehigh County dismissed appellant's petition without hearing and this appeal followed.

Relator, Nicholas Tiscio, after conviction in Lehigh County, was sentenced on January 23, 1939 on four bills of indictment, three of which charged burglary and the fourth which charged larceny and receiving stolen goods. He received sentences of from two and one-half to five years on each, to be served consecutively and it was directed by reason of credits for previous incarceration, that the first sentence be computed as running from November 23, 1938. After serving about nine and one-half years, he was paroled on May 18, 1948, and was recommitted on July 8, 1952 because of his conviction of a crime while on parole. He was denied credit against the balance of his maximum sentence for this time spent on parole. Com. ex rel. O'Leary v. Ashe, 152 Pa. Superior Ct. 322, 324, 32 A.2d 36; Com. ex rel. Carmelo v. Burke, 168 Pa. Superior Ct. 109, 116, 78 A.2d 20 (See Act of August 6, 1941, P.L. 861, as amended

[ 180 Pa. Super. Page 465]

    by adding thereto section 21.1 by Act of August 24, 1951, P.L. 1401, section 5, 61 P.S. 331, 21 A.) He filed a petition for writ of habeas corpus alleging that the total maximum sentences had expired on May 23, 1951 and consequently he was not on parole at the time of the commission of the subsequent offense. He appealed to this court from the refusal of his writ and we held, Com. ex rel. Tiscio v. Burke, 173 Pa. Superior Ct. 350, 98 A.2d 760, that in accordance with the Act of June 25, 1937, P.L. 2093, No. 420, section 1, 19 PS § 897, his maximum sentence, computed for purposes of parole, did not expire until November 23, 1958. (We also ordered him to appear for resentencing on the larceny bill as his sentence thereon in 1939 was excessive under the law. He has since been resentenced.) Tiscio remained in prison until April 16, 1954, when he was again paroled. On February 4, 1955 he was arrested in Northampton County on a charge of receiving stolen goods, for which he was tried, convicted and sentenced to the Northampton County Prison where he is incarcerated. The Parole Board, on learning of this, issued a detainer on the unexpired Lehigh County sentence of 1939. Tiscio responded with his petition of habeas corpus, filed in Lehigh County, again attacking the computation of his maximum sentences on the 1939 charges. Apparently, his purpose is to have the detainer withdrawn as the first step in obtaining his release from the Northampton County Prison. He chose the wrong forum.

The Act of May 25, 1951, P.L. 415 sec. 1, 12 P.S. sec. 1901, relating inter alia to venue in habeas corpus proceedings provides for general jurisdiction in any judge of a court of common pleas of this Commonwealth, but limits the venue to a judge of the judicial district wherein the relator is confined or to the judge of the judicial district responsible for relator's commitment, with this

[ 180 Pa. Super. Page 466]

    further limitation: "Provided, that when relator's detention or confinement is by virtue of sentence after conviction for a criminal offense only a judge of the judicial district of the conviction and sentencing shall exercise such jurisdiction." This latter is a departure from the prior law, both common law and statutory, Com. ex rel. Paylor v. Claudy, 366 Pa. 282, 285, 77 A.2d 350; Act of February 18, 1785, 2 Sm.L. 275 ...


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