Appeal, No. 193, Oct. T., 1959, from order of Court of Common Pleas of Lancaster County, Jan. T., 1959, No. 4, in case of Commonwealth of Pennsylvania ex rel. John J. Stranahan v. William J. Banmiller, Warden. Order affirmed.
John J. Stranahan, appellant, in propria persona.
Harold W. Budding, Assistant District Attorney, and William C. Storb, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 422]
This is an appeal from the refusal of the Court of Common Pleas of Lancaster County to grant a writ of habeas corpus to J. J. Stranahan, a prisoner at Eastern State Penitentiary. The court below dismissed the petition on the ground that it raised only questions already disposed of in two previous petitions by the prisoner for writs of habeas corpus which it had refused to grant.
The petitioner was sentenced on May 24, 1953, to the Lancaster County Jail on two charges of larceny for a term of 2 to 4 years. He was released on parole June 22, 1954, after receiving a commutation of the minimum sentence by the Board of Pardons. Having committed a new offense while on parole, he was sentenced on February 11, 1955, to imprisonment in a penitentiary for a term of 2 to 4 years, to be computed from the expiration of his back-time on the prior sentence.
He was committed to the penitentiary, and there entered to serve the new term for the latter crime. This was according to the provisions of the Act of August 24, 1951, P.L. 1401, section 5 which provided, inter alia, that "If a new sentence is imposed upon [a convicted parole violator] to be served in any institution other than the one from which paroled, then the service of the new term for the latter crime shall precede the commencement of the balance of the term originally imposed."*fn1 This provision must be followed even though the sentencing judge directs otherwise. See Commonwealth ex rel. Harman v. Burke, 171 Pa. Superior Ct. 547, 554, 91 A.2d 385 (1952); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa. Superior Ct. 156, 162, 149 A.2d 501 (1959).
[ 190 Pa. Super. Page 423]
The Pennsylvania Board of Parole granted the prisoner a parole from his penitentiary sentence on February 7, 1957, to start serving on his prior Lancaster County jail sentence. The warden in charge of the Lancaster County Prison immediately petitioned the Deputy Commissioner of Treatment of the Bureau of Corrections in the Department of Justice to transfer Stranahan to the penitentiary where he had been imprisoned. The Court of Quarter Sessions of Lancaster County gave its consent to the transfer. (The transfer was suggested by the judge while imposing the second sentence). The deputy commissioner ordered the transfer which was made as provided in the Act of July 11, 1923, P.L. 1044, as last amended by the Act of July 29, 1953, P.L. 1449, 61 PS § 72. There is no merit to the contention of the petitioner made here that the amendment of 1953 is not applicable to him because his original sentence was imposed prior to its effective date. see Commonwealth ex rel. Davidson v. Maroney, 177 Pa. Superior Ct. 82, 85, 87, 110 A.2d 822 (1955); Commonwealth ex rel. Wall v. Smith, 345 Pa. 512, 29 A.2d 912 (1942); Commonwealth ex rel. Campbell v. Ashe, 141 Pa. Superior Ct. 408, 411, 15 A.2d 409 (1940).
The petitioner contends that having been sentenced to a county jail on the original offense, he cannot be compelled, through transfer under the Act of 1923, as amended, supra, to serve any part of that sentence in a penitentiary. This contention is fully answered in the case of Commonwealth ex rel. Radziewicz v. Burke, 169 Pa. Superior Ct. 263, 82 A.2d 252 (1951), which rules this case. See also Commonwealth ex rel. Bozzi v. Myers, 186 Pa. Superior Ct. 42, 140 A.2d 375 (1958).
Before leaving this contention, however, we might note that this Court said in Commonwealth ex rel. Dennis v. Ashe, 161 ...