The opinion of the court was delivered by: MASTERSON
Augustus Young, a prisoner at the State Correctional Institution at Graterford, Pennsylvania, (hereinafter the relator), has filed two petitions for the Writ of Habeas Corpus which attack convictions on two different ses of indictments.
According to the respondent's return to the Court's Order to show cause, the relator was indicted in the November Sessions, 1957, on Bill Nos. 105 (Burglary with Intent to Commit a Felony, Rape); 106 (Robbery); 107 (Indecent Assault); 108 (Assault and Battery with Intent to Ravish, Rape); 109 (Sodomy); 110 (Impersonating an Officer); and 111 (Assault and Battery and Resisting Arrest). Relator was tried on January 9, 1958, before the Honorable Peter F. Hagan sitting with a jury. Relator was represented by Robert L. Nix, Esquire. The jury returned a verdict of guilty on all Bills except Numbers 109, 110 and 111. Sentence was deferred pending the filing of a motion for new trial and argument thereon. The motion for a new trial was denied on March 18, 1958, and on March 24, 1958 relator was sentenced from 5 to 10 years on Bill Nos. 105, 106, and 108, to run concurrently with sentence being suspended on Bill No. 107. No direct appeal was taken from judgment of sentence.
The effective date of sentence was November 3, 1957, giving the relator a minimum date of November 3, 1962, and a maximum date of November 3, 1967. Relator was paroled from Graterford on these sentences on November 3, 1963.
Subsequently, Mr. Young was indicted for crimes allegedly committed while on parole. September Sessions, 1965. Bill Nos. 397 to 399 charged the relator with Assault and Battery, Indecent Assault, Burglary and Statutory Rape. After a trial by jury on December 14, 1965, the relator was found guilty on all Bills. On February 7, 1966, relator's motion for a new trial and in arrest of judgment was denied, and on February 15, 1966, the relator was sentenced to four to eight years imprisonment.
After sentence was imposed upon these convictions, Young was delivered to the Eastern Diagnostic Classification Center in Philadelphia as a convicted parole violator. He was later returned to the State Correctional Institution at Graterford, Pennsylvania. The Pennsylvania Board of Probation and Parole set his new maximum date at February 15, 1970, and recommended that he serve until that date.
Through the two petitions now before this Court, the relator attacks the legality of all sentences now pending.
I. MISCELLANEOUS NO. 3827
The relator presently attacks the legality of his 1958 conviction on the following grounds:
(a) illegally seized evidence was introduced at trial; and
(b) the trial Judge's charge to the jury was erroneous and prejudicial.
The relator also urges that his petition is properly before this Court because the state courts have "inordinately" delayed considering the above contentions. According to the respondent's answer to our Order to show cause, the relator had filed a petition in November, 1966, under the provisions of the Pennsylvania Post-Conviction Hearing Act, which attacked the legality of his 1958 conviction on the same grounds as alleged here. On June 19, 1967, the Honorable Edmund Spaeth granted relator leave to file post trial motions, nunc pro tunc, as to Bill Nos. 105, 106 and 108 of November Sessions, 1957.
In his habeas corpus petition, the relator provided us with a hand-written copy of a typed letter he allegedly received from Mr. Melvin Dildine, Chief of the Appeal Division, of the Defender Association of Philadelphia.
The letter, which is dated August 30, 1967, advised the relator that motions in arrest of judgment and for a new trial had been filed in the state courts on his behalf. The letter goes on to state that these motions were listed for argument on June 12, 1967, but were continued because the relator had not been brought down from prison. Mr. Dildine assured the relator that these motions would be listed for disposal as soon as possible. However, in his answer to our Order to show cause, the Philadelphia District Attorney stated that "it appears that no post trial motions were filed and therefore no action was taken by the state courts on relator's contentions."