Supplementary Opinion by Montgomery, J. Concurring Opinion by Wright, J.
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Supplementary Opinion by Montgomery, J., November 10, 1965:
As a supplement to our opinion filed October 7, 1965, in which we held Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965),*fn1 as governing the present case, we deem it advisable to discuss our reasons.
The factual situations in the two cases are not identical. In Stevens the relator was serving a sentence which he was not attacking. His attack was aimed at a later sentence which had not begun to run. In such cases the rule existing before Stevens is stated therein
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as follows, "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 because the propriety of the present confinement is unquestioned."
After a learned discourse on the history of the Great Writ with attention given to the manner in which the rigidity of the rule previously set forth has been eased, particularly in cases where improper or excessive sentences are corrected, the Supreme Court states:
"Reason accords with necessity and practicality in urging that we make the conditions under which the writ will issue conform with its current scope in cases of the instant sort. The history of the writ, its traditional use, and its recent development all indicate the writ's flexibility as a procedural vehicle for collaterally reaching fundamental defects in the administration of criminal justice. A refusal to permit the employment of the writ in the present circumstances would result in placing central emphasis on the history of the writ rather than upon its suitable employment in maintaining the balance 'nice, clear and true between the State and the accused.'
"Confident of our power to mold the Great Writ to the exigencies of the times, and mindful of present necessities, we conclude that the prematurity concept should be modified in circumstances such as those present here and that the writ of habeas corpus may be sought in post-conviction attacks on the validity of a final judgment of conviction even though the petitioner has not yet begun to serve the sentence imposed."
In the present case Alexander is attacking the first sentence on which he is on "constructive" parole,*fn2 while
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serving the second or later sentence. If his second sentence had not been to a correctional institution under the supervision of the Department of Justice as his first had been the situation would have been similar to Stevens for the reason that, under those circumstances, he would have been compelled to serve the second sentence before doing his back time on the first. Section 21.1 of the Act of August 6, 1941, P. L. 861, as amended, 61 P.S. § 331.21a. Furthermore, had relator not been reparoled he would not have commenced serving his second sentence and the foregoing rule would not have been applicable since he ...