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COMMONWEALTH EX REL. ESTELLE v. CAVELL. (12/17/59)

December 17, 1959

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



Appeal, No. 17, April T., 1959, from order of Court of Common Pleas of Westmoreland County, Jan. T., 1958, No. 200, in case of Commonwealth of Pennsylvania ex rel. Acie Estelle v. Angelo C. Cavell, Warden. Order affirmed.

COUNSEL

Marjorie Hanson Matson, with her Louis C. Glasso, for appellant.

John K. Best, First Assistant District Attorney, with him Richard E. McCormick, District Attorney, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Wright

[ 191 Pa. Super. Page 202]

OPINION BY WRIGHT, J.

Acie Estelle has appealed from an order of the Court of Common Pleas of Westmoreland County dismissing, after hearing, his petition for a writ of habeas corpus. The factual and procedural background is set forth in the following excerpt from the opinion below:

"The petitioner and one, Alfred Earley, were implicated in two crimes. They were indicted for burglary and larceny and receiving stolen property from a garage located at Avonmore, Westmoreland County, Pennsylvania, at No. 212 May Term, 1952, and for burglary of the State Liquor Store at Avonmore, Westmoreland County, Pennsylvania at No. 212a May Term, 1952.

"The petitioner was represented by counsel and was duly convicted in both indictments, and a motion for a new trial was filed and subsequently refused by the court en banc of Westmoreland County.

"The petitioner was sentenced at No. 212 May Term, 1952, to a term of not less than ten years or more than twenty years in the Western State Penitentiary, and at No. 212a May Term, 1952, petitioner was sentenced to a period of not less than five years or more than ten years in the Western State Penitentiary. This sentence to run consecutively with the sentence imposed at No. 212 May Term, 1952. The Court within term time changed the sentence at No. 212a May Term, 1952, so as to make the sentence run concurrently with the one imposed at No. 212 May Term, 1952, thereby reducing the total sentence to ten to twenty years in the penitentiary.

"The petitioner previously filed for a writ of habeas corpus in the Court of Common Pleas of Westmoreland County at No. 595 July Term, 1955, alleging that false testimony was given against him by the accomplice, Alfred Earley. This petition was not accompanied by an affidavit of Alfred Earley to that effect, and this petition was dismissed as being without merit. In

[ 191 Pa. Super. Page 2031957]

, the petitioner attempted to have his sentence changed because of an alleged error. This ...


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