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COMMONWEALTH EX REL. WHALEN v. BANMILLER. (11/16/60)

November 16, 1960

COMMONWEALTH EX REL. WHALEN, APPELLANT,
v.
BANMILLER.



Appeal, No. 315, Oct. T., 1960, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1959, No. 633, in case of Commonwealth ex rel. Edward J. Whalen v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Edward J. Whalen, appellant, in propria persona.

Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

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

Author: Wright

[ 193 Pa. Super. Page 555]

OPINION BY WRIGHT, J.

Edward J. Whalen has appealed from an order of Court of Common Pleas No. 5 of Philadelphia County dismissing his petition for a writ of habeas corpus.

On January 21, 1956, on Bill No. 824 July Sessions 1954, charging robbery, Whalen was sentenced by Judge LEVINTHAL to serve a term of not less than seven and one-half years nor more than fifteen years in the Eastern State Penitentiary. On February 28, 1957, on the recommendation of the Board of Pardons, the minimum sentence was commuted by the Governor to a term of eleven months and twenty-eight days. On April 29, 1957, Whalen was released on parole, at which time the balance of his maximum sentence remaining was thirteen years, eleven months and three days. On June 11, 1958, on Bill No. 1 March Sessions 1958, charging attempted burglary, Whalen was sentenced by President Judge ALESSANDRONI to serve a

[ 193 Pa. Super. Page 556]

    term of seven and one-half to twenty years in the Eastern State Penitentiary. We affirmed this judgment in Commonwealth v. Whalen (No. 1), 189 Pa. Superior Ct. 351, 150 A.2d 133. Whalen was thereupon returned to the penitentiary as a convicted parole violator, and is being required to serve the balance of his sentence on Bill No. 824 July Sessions 1954 before commencing to serve his sentence on Bill No. 1 March Sessions 1958.

Whalen is here attempting to attack his sentence on Bill No. 824 July Sessions 1954. This charge arose out of a hold-up on June 29, 1954 at Moesheim's, 417 West Girard Avenue in Philadelphia. In his petition Whalen states that, at the time of his arrest as a participant in the Moesheim robbery, "I was on parole from the penitentiary for a hold-up which I had committed some nine years before". The offense to which he refers resulted in a sentence of five to ten years by then President Judge BOK, now a Justice of our Supreme Court. The record discloses that Whalen has twice before attempted to attack his sentence on Bill No. 824 July Sessions 1954. The first attempt was in 1956 by petition for a writ of error coram nobis, which petition was dismissed by Judge LEVINTHAL. The second attempt was in 1957 by petition for a writ of habeas corpus, which petition was dismissed by President Judge FLOOD. Attached to Whalen's petition is a copy of the opinion in that proceeding filed on February 14, 1958, in Court of Common Pleas No. 1 at No. 373 December Term 1957. Judge MCCLANAGHAN dismissed the instant petition because there was no legal basis to support it, pointing out that all of Whalen's present complaints "had previously been disposed of by His Honor Judge FLOOD".

Appellant's statement of the questions involved on this appeal is as follows: "1. Is ...


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