taking into account the time relator was an escapee so that the minimum sentences expired February 28, 1960, and the maximum expired February 28, 1969. Further, the dates of all subsequent sentences including a sentence of 5 to 10 years for assaulting another prisoner imposed in May of 1960 were adjusted accordingly.
(Part of the record is reconstructed from the Opinion of Justice Roberts of the Pennsylvania Supreme Court in Commonwealth ex rel. Goins v. Rundle, 411 Pa. 590, 192 A. 2d 720 (1963) infra.)
Relator then sought relief by habeas corpus in the United States Court for the Eastern District of Pennsylvania seeking there a discharge from custody or recomputation of his sentences. On April 27, 1964, Judge Luongo denied the petition without hearing. This Order was affirmed in Commonwealth of Pa. ex rel. Goins v. Rundle, 338 F.2d 1015 (3rd Circuit 1965).
Undaunted, relator filed another petition for habeas corpus at No. 741, July Term, 1964 in the Court of Common Pleas of Allegheny County attacking the recomputation of his sentences. This petition was dismissed without hearing on April 22, 1964.
Realizing that he now faced sentences which might not expire until February 28, 1970, at a minimum and perhaps February 28, 1989, at a maximum (we presently have no accurate computation of all the additional sentences) and realizing that he had failed in all of his efforts at having his sentences recomputed, the relator in his petition of March 31, 1970, sought to reopen the original issue, i.e., that an involuntary confession was used against him and his conviction was thus invalidated and further, sought to have the Court apply the time he had served on his 1947 sentences to the valid sentences he was serving for prison breach and robbery.
The judge to whom the petition of March 31, 1970, was assigned, dismissed it as moot because he observed that the original sentences of 9 to 18 years even as recomputed had expired on February 28, 1969. He concluded that it was unnecessary to consider the question and by Order of June 1, 1970, the petition was dismissed.
The Circuit Court on October 8, 1970, granted relator's petition for appeal and remanded the case for reconsideration in the light of United States ex rel. Di Rienzo v. New Jersey, 423 F.2d 224 (1970 3rd Cir.)
A rule was then issued calling on the District Attorney to show cause why a hearing should not be held.
The case was assigned to the undersigned and we presided at the hearing.
The petitioner filed a brief in which he contended that it was the Commonwealth's burden to prove that the confession was not used (or that it was voluntary) and this burden arose merely because he had made the allegation. Since the Commonwealth could not prove anything at all, he argued that his 1947 convictions were automatically invalidated and all time served under them should be applied to the valid sentences for robbery and prison breach, thus satisfying the required time in prison and consequently that he was entitled to immediate release.
The District Attorney of Allegheny County appeared and opposed the petition but admitted that he could find no record of the trial and no living person with any recollection of the events.
With this recital in mind, we will reconsider the matter in the light of Di Rienzo.
Di Rienzo holds that a District Court has jurisdiction to inquire whether one held in custody, who faces serving a subsequent sentence, would under state law, be entitled to credit on that sentence for time served on an alleged defective sentence even though that sentence has expired. If he would be entitled to such credit, the District Court has jurisdiction to examine the merits of his challenge even though the sentence he challenges has expired. Di Rienzo cited Cappetta v. Wainwright.
In Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir.) cert. denied 396 U.S. 846, 90 S. Ct. 55, 24 L. Ed. 2d 96 (1969) petitioner claimed that setting aside his fully served sentence would entitle him to immediate release from a second sentence he was then serving. The Court reversed the District Court's dismissal for want of jurisdiction and remanded the case for a determination whether the setting aside of the fully served sentence would result in the petitioner receiving credit in some degree on his second sentence.
We must inquire therefore whether relator under Pennsylvania law would be given credit on the sentence he is now serving for prison breach and the robberies committed during his freedom from prison, if his convictions on the burglaries were actually set aside.
The Act of August 14, 1963, P.L. 841, 19 P.S. 898 provides the following:
"Any person who has been convicted of an offense in any court in this Commonwealth and sentenced to a term of imprisonment shall be given credit toward the service of his sentence for any days spent in custody on this offense (italics supplied) prior to the imposition of his sentence, including any days spent in custody on this offense prior to the entry of bail."
It is apparent that relator has spent no time in prison awaiting sentence for prison breach and for the robberies committed during his freedom for which he has not been given credit. It is also apparent that credit is to be given for time served only if it is served toward "this offense" meaning the offenses of prison breach and robbery.
The question however, is made more complicated by the Act of May 28, 1937, P.L. 1036, 19 P.S. 894, which provides the following:
"From and after the passage of this act, all sentences for criminal offenses of persons who at the time sentence is imposed are held in custody in default of bail, or otherwise, shall begin to run and be computed from the date of commitment for the offense for which said sentence shall be imposed, unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be computed, either from the date of imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct."