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COMMONWEALTH EX REL. VENTURA v. CAVELL. (06/11/58)

June 11, 1958

COMMONWEALTH EX REL. VENTURA, APPELLANT,
v.
CAVELL.



Appeal, No. 45, April T., 1958, from order of Court of Oyer and Terminer of Beaver County, June T., 1948, No. 30, in case of Commonwealth of Pennsylvania ex rel. Arthur Ventura v. Angelo C. Cavell, Warden, Western State Penitentiary. Order affirmed.

COUNSEL

Arthur Ventura, appellant, in propria persona.

R. Eric Simons, First Assistant District Attorney, for appellee.

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

Author: Wright

[ 186 Pa. Super. Page 206]

OPINION BY WRIGHT, J.

On August 26, 1957, Arthur Ventura, an inmate of the Western State Penitentiary, petitioned the Court of Common Pleas of Beaver County for a writ of habeas corpus. The purpose of the application was to demand that a sentence imposed upon relator by the Court of Oyer and Terminer of Beaver County on March 22, 1950, on a charge of burglary at No. 30 June Term, 1948, and which sentence was directed to commence at the expiration of a prior existing sentence from Washington County, should to the contrary be directed to commence as of, and run without interruption from, February 20, 1948, the date of relator's original commitment to the Beaver County jail. The court below scheduled a hearing, at which relator was represented by counsel and testified in person. The sentence in question was thereafter modified so as to give relator credit for various periods of time, totaling 311 days, he had been held in the Beaver County jail prior to March 22, 1950, and the petition was dismissed. Ventura has appealed.

The factual situation is somewhat complicated, and we will endeavor to summarize it briefly. Following burglaries in Beaver, Washington, Greene, and Westmoreland Counties, appellant was apprehended and committed to the Beaver County jail on February 20, 1948. Prior to his trial in Beaver County, appellant was released from and returned to the Beaver County jail on five occasions in connection with the various prosecutions against him. On December 17, 1948, appellant was convicted in Beaver County. Prior to his original sentence in Beaver County, appellant was released from and returned to jail on three more occasions. On the last of these, May 9, 1949, appellant was sentenced in Washington County to a term of 7 1/2 to 20 years. This judgment of sentence was affirmed

[ 186 Pa. Super. Page 207]

    in Commonwealth v. Romito et al., 166 Pa. Superior Ct. 158, 70 A.2d 444. On June 8, 1949, appellant was sentenced in Beaver County to a term of 10 to 20 years. Because of a trial error, this judgment of sentence was reversed and a new trial awarded in Commonwealth v. Ventura, 166 Pa. Superior Ct. 162, 70 A.2d 446. After a second trial in Beaver County, appellant was sentenced to a term of 3 to 10 years, sentence to commence at the expiration of the sentence imposed in Washington County. The sentence imposed upon appellant in Greene County is not here material as it was served concurrently with his Washington County sentence. However, the Beaver County sentence is to be followed by an aggregate sentence of 20 to 40 years imposed in Westmoreland County. According to appellant's brief, he was paroled on his Washington County sentence on November 9, 1956, and was immediately re-entered to serve the Beaver County sentence.

The three questions appellant raises on this appeal actually involve only one contention, as previously indicated, that the sentence imposed by the Beaver County court must commence as of, and run without interruption from, February 20, 1948, and that it was unlawful for the court below to direct that said sentence should commence at the expiration of the Washington County sentence. The effect of this contention, if sustained, would be to make the Washington and Beaver County sentences concurrent, and virtually nullify the latter. The authority cited by appellant for his contention is Section I of the Act of 1937, P.L. 1036, 19 P.S. 894.*fn1 The Commonwealth relies upon the same statute.

[ 186 Pa. Super. Page 208]

The legislative purpose of the Act of 1937 is to secure to the person convicted after imprisonment in default of bail a credit for the actual time spent in custody preceding imposition of the sentence: Commonwealth ex rel. Accobacco v. Burke, 162 Pa. Superior Ct. 592, 60 A.2d 426. In Commonwealth ex rel. Dion v. Martin, 183 Pa. Superior Ct. 310, 131 A.2d 150, a convict on parole committed another crime. The trial judge directed that his sentence be computed from the date of commitment to the county prison. We held that this direction did not require that the sentence should run concurrently with the unexpired parole time, but was solely for the purpose of compensating the defendant for the time served in jail prior to sentence. See also Commonwealth ex rel. Thomas v. Maroney, 175 Pa. Superior Ct. 446, 106 A.2d 869; Commonwealth ex rel. Geisler v. Claudy, 172 Pa. Superior Ct. 281, 93 A.2d ...


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