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COMMONWEALTH EX REL. BOZZI v. MYERS. (04/16/58)

April 16, 1958

COMMONWEALTH EX REL. BOZZI, APPELLANT,
v.
MYERS.



Appeal, No. 139, Oct. T., 1958, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 9797, in case of Commonwealth of Pennsylvania ex rel. James Bozzi v. David N. Myers, Warden. Order affirmed.

COUNSEL

Vincent A. Cirillo, for appellant.

Juanita Kidd Stout, Assistant District Attorney, with her Lawrence M. Aglow, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

[ 186 Pa. Super. Page 43]

OPINION PER CURIAM.

Relator was convicted on bill No. 970, April Sessions, 1954, in the Court of Quarter Sessions of Philadelphia County charging unlawful and felonious possession of drugs with an additional averment of previous conviction. See Com. v. Bozzi, 178 Pa. Superior Ct. 224, 116 A.2d 290, allocatur refused 178 Pa. Superior Ct. xxviii; Com. v. Bozzi, 169 Pa. Superior Ct. 206, 82 A.2d 303, allocatur refused 169 Pa. Superior Ct. xxvi. He was sentenced to pay a fine of $2,000 and to serve a term of not less than five years nor more than ten years in the Philadelphia County Prison. Sentence was to be effective from August 19, 1954.

On petition of the acting superintendent of the Philadelphia County Prison relator was transferred, because of the overcrowded condition, to the Eastern State Penitentiary on August 15, 1955, and thence to the State Penitentiary at Graterford on September 26, 1955, as provided by the Act of July 11, 1923, P.L. 1044, as amended, 61 PS ยง 72.

On May 21, 1957, relator filed a petition for writ of habeas corpus in the Court of Common Pleas No. 3 of Philadelphia County. Answers were filed by the warden

[ 186 Pa. Super. Page 44]

    and the Commonwealth. The petition was dismissed on August 14, 1957; relator has appealed to this Court.

The order of the court below is affirmed on the following portions of the opinion of Judge GRIFFITHS:

"Petitioner does not question the legality of his transfer under the above statute, but alleges that since he was sentenced to the county prison and not a state penitentiary his sentence in a penitentiary is equivalent to a substantially greater period than under simple imprisonment in the county jail.

"In support of his position, petitioner relies on such cases as Commonwealth ex rel. Dennis v. Ashe, 161 Pa. Superior Ct. 540 [55 A.2d 433] (1947), and Commonwealth ex rel. Holly v. Ashe, 166 Pa. Superior Ct. 599 [74 A.2d 182] (1950), in which our Superior Court has stated that imprisonment in a state penitentiary is more severe than in a county jail. Nowhere, however, is there authority for the proposition that the court should consider this in recomputing a prisoner's sentence except in ...


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