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COMMONWEALTH EX REL. TANCEMORE v. MYERS. (04/16/59)

April 16, 1959

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



Appeal, No. 160, Oct. T., 1959, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1958, No. 3542, in case of Commonwealth of Pennsylvania ex rel. Jesse Tancemore v. David N. Myers, Warden. Order affirmed.

COUNSEL

Jesse Tancemore, appellant, in propria persona.

Richard M. Rosenbleeth and Juanita Kidd Stout, Assistant District Attorneys, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

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

Author: Wright

[ 189 Pa. Super. Page 272]

OPINION BY WRIGHT, J.

On August 28, 1958, Jesse Tancemore, an inmate of the Eastern State Penitentiary, petitioned the Court of Common Pleas of Philadelphia County for a writ of habeas corpus. A rule to show cause was granted, returnable September 12, 1958, and the petitioner was permitted to proceed in forma pauperis. On October 9, 1958, Judge WATERS entered an order dismissing the petition. On October 28, 1958, Tancemore filed a motion for a re-hearing, which was refused forthwith. This appeal followed.

The record discloses that, on September 29, 1949, appellant was tried without a jury and convicted before the late Judge CRUMLISH on Bill No. 328 September Term 1949 charging burglary. He was committed to the Pennsylvania Industrial School at Camp Hill, sentence to be computed from September 3, 1949. His maximum term was accordingly set to expire on September 3, 1969. Appellant was paroled on April 4,

[ 189 Pa. Super. Page 2731951]

. He was returned as a technical parole violator on October 6, 1952, with his maximum term still set to expire on September 3, 1969. On January 21, 1954, appellant was again paroled from the Pennsylvania Industrial School. On October 1, 1957, he was returned as a convicted parole violator to the Eastern Correctional, Diagnostic, and Classification Center, Eastern State Penitentiary, Philadelphia. On January 6, 1958, he was transferred to the State Penitentiary at Graterford, with his new maximum term fixed to expire on February 17, 1973. It is this term which appellant is presently serving.

In his brief appellant advances six contentions, the first three of which are as follows: "1. The defendant was not advised of his Constitutional Rights not to answer any questions. 2. The defendant was not advised that anything he said would be used against him. 3. The defendant was denied a prompt hearing". These contentions were not advanced in appellant's petition for the writ, nor raised in the court below. See Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530. They have no merit and, in any event, would not be ground for habeas corpus after conviction: Commonwealth ex rel. Sickler v. Myers, 188 Pa. Superior Ct. 541, 149 A.2d 178.

Appellant's fourth contention is "that he was given an illegal and excessive sentence". At the time of his sentence, appellant was also before the court as the result of a plea of guilty on Bill No. 327 September Sessions 1949, in which he was charged with conspiracy to commit burglary, and also a plea of guilty on Bill No. 329 September Sessions 1949, in which he was charged with possession of burglary tools. Appellant was sentenced on only one of the three ...


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