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COMMONWEALTH EX REL. GRAHAM v. MYERS. (03/22/61)

March 22, 1961

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



Appeal, No. 441, Oct. T., 1960, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1960, No. 2951, in case of Commonwealth ex rel. Henry Graham v. David N. Myers, Superintendent. Order affirmed.

COUNSEL

Henry Graham, appellant, in propria persona.

Augustine J. Rieffel and Arlen Specter, Assistant District Attorneys, 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

[ 194 Pa. Super. Page 562]

OPINION BY WRIGHT, J.

On August 5, 1960, in Court of Common Pleas No. 4 of Philadelphia County, Henry Graham filed a petition for a writ of habeas corpus, upon the presentation of which petition a rule to show cause was granted. Answers were filed by the Superintendent of the State Correctional Institution at Graterford, Pennsylvania, and by the District Attorney of Philadelphia County. On August 26, 1960, the return day, the rule was discharged and the petition dismissed. Graham has appealed.

The record discloses that appellant was arrested for questioning in connection with a rape and robbery which occurred on January 10, 1959, at 1734 North Park Avenue, Philadelphia. On January 12, 1959, appellant was taken before a magistrate, formally charged, and committed to the Philadelphia County Prison. At February Sessions 1959, appellant was indicted by the grand jury of Philadelphia County on three bills of indictment as follows: Bill No. 70 charging conspiracy, Bill No. 71 charging rape and aggravated

[ 194 Pa. Super. Page 563]

    assault, and Bill No. 72 charging robbery by violence. On June 9, 1959, appellant was tried on the aforesaid charges, and convicted. On Bills Nos. 70 and 72 sentence was suspended. On Bill No. 71 appellant was sentenced to imprisonment for a term of not less than seven and one-half years nor more than fifteen years. He was thereupon delivered to the Eastern Correctional Diagnostic Center. On September 1, 1959, appellant was transferred to the State Correctional Institution at Graterford, where he is presently confined.

Appellant's sole contention on this appeal is that he was denied the speedy public trial guaranteed to him under Section 9, Article I of the Constitution of this Commonwealth. He argues that "by the prosecution delaying the trial for approximately five months ... the 'trial court' was without jurisdiction to proceed, and all proceedings had against the petitioner in this court on June 9, 1959, were null and void".

In support of his contention, appellant attempts to rely upon Section 54 of the Act of March 31, 1860, P.L. 427, 19 P.S. 781,*fn1 which provides that "if such prisoner shall not be indicted and tried the second term, session or court after his or her commitment ... he shall be discharged from imprisonment". However, it is well settled that the discharge contemplated by this statute is not a final release, but a discharge from imprisonment only: Commonwealth v. Mitchell, 153 Pa. Superior Ct. 582, 34 A.2d 905; affirmed 349 Pa. 559, 37 ...


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