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COMMONWEALTH EX REL. ACKERMAN v. RUSSELL (03/23/67)

decided: March 23, 1967.

COMMONWEALTH EX REL. ACKERMAN, APPELLANT,
v.
RUSSELL



Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Crawford County, Sept. T., 1961, No. 61, from order of Court of Quarter Sessions of Crawford County, Sept. T., 1961, No. 78-A, in case of Commonwealth ex rel. Albert Ackerman v. Harry E. Russell, Superintendent.

COUNSEL

Albert Ackerman, appellant, in propria persona.

John Fuller, Assistant District Attorney, and Vincent J. Pepicelli, District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Wright, J., would affirm the order below.

Author: Montgomery

[ 209 Pa. Super. Page 469]

This appeal by petitioner Albert Ackerman is from an order dismissing, without a hearing, his petition filed under the Post Conviction Hearing Act, January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1. The reasons assigned in support of the petition are: "a. The introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required. b. The denial of my constitutional rights to representation by competent counsel. c. A plea of guilty unlawfully induced. d. The abridgement of a right guaranteed by the Constitution or laws of this state or the Constitution or laws of the United States, including a right that was not recognized as existed at the time of the trial if the constitution requires retrospective application of that right.", and are asserted in reference to his sentences imposed October 8, 1959, following pleas of guilty to thirteen charges of burglary and larceny at No. 59-B and No. 62, A to L, September Sessions, 1959, Crawford County. He was sentenced to the Pennsylvania Industrial School at

[ 209 Pa. Super. Page 470]

Camp Hill on each indictment, all of which sentences were made to run concurrently, were effective from August 4, 1959, and had expired at the time this petition was filed. His petition recited that he was then serving subsequent sentences hereinafter referred to.

After serving one year and nine months on the 1959 sentences petitioner was paroled. Thereafter, on June 29, 1961, he was again arrested on a new charge of burglary and larceny for which he received an additional sentence on September 27, 1961, at No. 61 September Sessions, 1961, of two to four years. While in jail on this charge, but prior to sentence, he tried to escape, for which he received an additional sentence at No. 78-A September Sessions, 1961, of one to two years following the expiration of the sentence at No. 61 September Sessions, 1961. Both of these sentences were to be computed from the expiration of the aforementioned sentences to Camp Hill. Petitioner declares in his petition that his purpose is to have the sentences to Camp Hill invalidated so that the time he served thereunder after his recommitment for parole violation may be credited on the subsequent sentences which he is now serving.

The Post Conviction Hearing Act provides that eligibility for relief under its provisions depends on whether the alleged errors on which relief is to be based have ever been litigated or waived. Although petitioner has filed numerous proceedings*fn1 we fail to find in the one that was previously before this Court

[ 209 Pa. Super. Page 471]

    or in the Commonwealth's brief any reference to the alleged errors now being asserted. It would appear that the questions litigated or raised in those proceedings were limited to the indictments returned in 1961, and not to the ones with which we are presently concerned which were returned in 1959. We are, therefore, constrained to rule that the petitioner ...


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