Appeal, No. 180, April T., 1960, from order of Court of Common Pleas of Allegheny County, April T., 1959, No. 2657, in case of Commonwealth ex rel. Lonnie Patrick v. William J. Banmiller, Warden. Order affirmed.
Hymen Schlesinger, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
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The petitioner in this habeas corpus case seeks release from the Eastern State Correctional Institution
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(formerly Eastern State Penitentiary) on a writ of habeas corpus filed in the Court of Common Pleas of Allegheny County. After taking testimony and hearing argument, that court dismissed the writ. The prisoner appealed.
The petitioner does not question a sentence of 2 1/2 to 5 years imposed in Allegheny County on April 26, 1957, for assault and battery with intent to rape. He does question a sentence of 5 to 10 years imposed for burglary. The sentencing judge directed that the sentence for burglary should run concurrently with the sentence for assault, the maximum of which does not expire until April 25, 1962. As the release of a prisoner prior to the expiration of his maximum sentence is a matter of grace within the discretion of the Pennsylvania Board of Parole, it can legally detain the appellant on the assault charge until the expiration of five years. Commonwealth ex rel. Haun v. Cavell, 190 Pa. Superior Ct. 346, 349, 154 A.2d 257 (1959); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa. Superior Ct. 156, 161, 149 A.2d 501 (1959).
There is no allegation or evidence that the Pennsylvania Board of Parole has paroled the petitioner from the assault sentence. Therefore, the petitioner is now legally detained in a state penal institution, and is not entitled to release by the courts on a writ of habeas corpus regardless of the legality of the burglary sentence. If the petitioner is legally detained in prison, he is not entitled to a writ of habeas corpus. Before he is entitled to the writ, he must show that he has a right to be discharged or released on bail. Commonwealth ex rel. Salerno v. Banmiller, supra, 189 Pa. Superior Ct. 156, 160, 149 A.2d 501 (1959).
The appellant alleges that he was denied counsel of his own choosing, and that he was particularly prejudiced in this denial because he might have been able to ...