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decided: September 29, 1965.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 9184 of 1963, in case of Commonwealth ex rel. Rayford G. Stevens v. David N. Myers, Superintendent.


Rayford G. Stevens, appellant, in propria persona.

Ralph B. D'Iorio, Assistant District Attorney, Domenic D. Jerome, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissent.

Author: Roberts

[ 419 Pa. Page 3]

This appeal questions the correctness of the dismissal, without hearing, of a 1963 petition for a writ of habeas corpus contesting a 1954 murder conviction.

After appellant-petitioner Stevens' 1954 jury trial resulted in a verdict of murder in the first degree on a felony-murder charge, the trial judge imposed a sentence of life imprisonment. Stevens, represented by court appointed counsel at trial, took no direct appeal but in 1959 he attacked the conviction by way of a petition for a writ of habeas corpus. That petition was dismissed by the Court of Common Pleas of Delaware County and the dismissal was affirmed by this Court. Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959). Certiorari was denied by the Supreme Court of the United States. 363 U.S. 816, 80 S. Ct. 1254 (1960). In 1963 Stevens, again contending that his murder conviction was invalid, once more sought a writ of habeas corpus.*fn1 The petition was dismissed without hearing and the present appeal follows the dismissal of this second petition.*fn2

[ 419 Pa. Page 4]


At the outset, we feel constrained to discuss an important issue of prematurity which was not raised by the Commonwealth or noticed by the court below.*fn3

At the time Stevens was sentenced to life imprisonment on the murder conviction, he was already serving a sentence for an unrelated Pennsylvania robbery. The trial judge explicitly directed that the life sentence commence at the expiration of the ten to twenty year robbery sentence.*fn4 Since the robbery sentence was to run from April 14, 1954, the expiration date of the minimum was April 14, 1964 and the expiration date of the maximum will be April 14, 1974. Sentences are considered imposed for the maximum term unless parole intervenes. Commonwealth ex rel., Appellant [ sic ] v. Ashe, 320 Pa. 341, 344, 345, 182 Atl. 229, 230-31 (1936); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa. Superior Ct. 156, 161, 149 A.2d 501, 504 (1959). Since petitioner has not been paroled, he is presently serving a sentence which he does not challenge.*fn5 Under such circumstances the rule has been that since the writ of habeas corpus is said to test only the legality of present restraint, the petition must be dismissed as premature

[ 419 Pa. Page 5]

    because the propriety of the present confinement is unquestioned. E.g., Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296, cert. denied, 308 U.S. 596, 60 S. Ct. 132 (1939) (per curiam) (attacked sentence for escape; held premature because still serving basic sentence).*fn6 In view of vastly changed circumstances affecting the use of the writ, we believe it appropriate to reconsider this judicial rule governing the function of the writ as it applies to cases of the present nature.*fn7

[ 419 Pa. Page 6]

The prematurity concept has been enunciated not only in considering the availability of the writ of habeas

[ 419 Pa. Page 7]

    corpus*fn8 as used in Pennsylvania, but also as a principle applicable to the federal writ,*fn9 and the writ

[ 419 Pa. Page 8]

    as utilized in other states.*fn10 Most frequently cited as authority for the proposition is McNally v. Hill, 293 U.S. 131,

[ 419 Pa. Page 955]

S. Ct. 24 (1934). McNally undertook to discern the scope of the federal writ as conceived in a federal statute. That statute provided that the federal writ might issue "for the purpose of an inquiry into the cause of restraint . . . ." The statute contained the express requirement that the petitioner be in "custody" of the United States.*fn11 In interpreting the statute, the Supreme Court of the United States looked to the common law for guidance in delineating the use of the writ. Finding no case prior to enactment of the statute in which the writ was used to determine a question which, even if decided favorably to the petitioner, could not have resulted in the petitioner's immediate release, that Court held that "such use of the writ in the federal courts is without the support of history or of any language in the statutes which would indicate a purpose to enlarge its traditional function." 293 U.S. at 138, 55 S. Ct. at 27. Since McNally does no more than define the role of the federal writ, it is, of course, not binding on this Court, although its careful historical discourse is helpful. Most subsequent decisions rely directly on McNally or rely on cases which

[ 419 Pa. Page 10]

    can be traced to McNally. Subsequent decisions have not paused to re-examine the serious consequences to our system of justice which are attendant upon the rule when blanketly applied in modern times. One federal court of appeals, however, has recently ruled contrary to McNally in the belief that the "restraint" requirement has now been relaxed by the Supreme Court.*fn12

In earlier times petitions for writs of habeas corpus were a far greater rarity than today, at least in Pennsylvania. Today's frequent resort to the writ can be laid to the burgeoning use of the writ as a means of attacking criminal convictions collaterally. This phenomenal development of the writ as an instrument of post-conviction litigation was not foreseen when the common law deemed the writ competent to test only sentences under which the petitioner was then serving.*fn13

[ 419 Pa. Page 11]

That the scope of the writ has developed greatly with the exigencies of the time as a post-conviction remedy seems so undeniable that extensive citation and comparison of cases might now well seem a needless exercise.*fn14 There is no other comprehensive ...

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