Appeal, No. 58, Jan. T., 1961, from judgment and sentence of Court of Oyer and Terminer of Wayne County, Oct. T., 1949, No. 12, in case of Commonwealth v. Claude Francis (Dyke) Swingle. Judgment and sentence affirmed.
Lawrence Goldberg, for appellant.
Louis B. Nielsen, Jr., District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
In 1921 Swingle was convicted of murder in the second degree in the State of New York and was sentenced to a term of imprisonment of not less than 20 years and not exceeding life. In 1945 he was paroled from that State to parole supervision in Pennsylvania.
On June 20, 1949, in Wayne County, Pennsylvania, Swingle pleaded guilty to murder. He was found guilty of murder in the second degree - this was less than five years after his parole - and because of his prior conviction in the State of New York of murder in the second degree, was sentenced to life imprisonment. The lower Court imposed this sentence believing
it was required to do so by § 701 of The Penal Code of June 24, 1939.*fn1
In 1959 Swingle presented a petition for a writ of habeas corpus, alleging that § 701 of The Penal Code did not include a murder committed outside of Pennsylvania and consequently the life sentence imposed upon him was illegal. This Court sustained his petition in Commonwealth ex rel. Swingle v. Banmiller, 398 Pa. 43, 156 A.2d 520. We there said (pages 46, 47): "... A conviction of murder in the second degree obtained outside*fn2 of the Commonwealth is not a prior conviction contemplated by § 701 which would empower the court to impose a life sentence. Hence, the prisoner is entitled to a writ of habeas corpus. However, the relator will not be discharged but remanded to the court below for imposition of a proper and legal sentence. Commonwealth ex rel. v. Smith, 324 Pa. 73, 187 Atl. 387 (1936)."
After the record was remanded to the Court below for imposition of a proper and legal sentence, the District Attorney notified defendant and his counsel of the intention of the Commonwealth to have Swingle sentenced as a second offender under § 1108 of The Penal Code, popularly known as the Habitual Offenders Act. All the requirements of that Act, and particularly of § 1108, and all the requirements of due process were complied with - Swingle received due notice with ample time to prepare his case and was accorded a hearing and was represented by counsel. He admitted the murder in New York. He presently contends that he could not be sentenced under the ...