Com. ex rel. Milewski v. Ashe

• Citation: 165 Pa.Super. 538,69 A.2d 448
• Court: Pennsylvania Superior Court
• Decision Date: 15 November 1949
• Parties: COMMONWEALTH ex rel. MILEWSKI v. ASHE, Warden, State Penitentiary.

Page 448

69 A.2d 448 165 Pa.Super. 538 COMMONWEALTH ex rel. MILEWSKI
v.
ASHE, Warden, State Penitentiary. Superior Court of Pennsylvania. Nov. 15, 1949.

Michael on Moschzisker, McBride, Lipschitz, Woolston, Berger & Bohlen, Philadelphia, for appellant.

[165 Pa.Super. 539] Fred L. Brothers, District Attorney, Fayette County, Thomas J. Kalman, Asst. District Attorney, Uniontown, for appellee.

[165 Pa.Super. 538] Before RHODES, P. J., and HIRT, DITHRICH, ROSS, ARNOLD and FINE, JJ.

Page 449

[165 Pa.Super. 539] PER CURIAM.

On September 7, 1948, this Court granted a rule to show cause why writ of habeas corpus should not issue on the petition of relator. On September 29, 1948, the rule to show cause was discharged and the writ of habeas corpus was refused. Relator was allowed to appeal to the Supreme Court of Pennsylvania which Court reversed the order of this Court and remitted the record with directions, Com. ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A.2d 281. On June 1, 1949, this Court, in pursuance of the mandate of the Supreme Court, ordered that the record be remitted to the Court of Oyer and Terminer of Fayette County, and that that court afford relator an opportunity to support by competent testimony the allegations of his petition for writ of habeas corpus, and that the complete record should then be returned to this Court. On June 27, 1949, in the Court of Oyer and Terminer of Fayette County, a hearing was conducted before the Honorable H. Vance Cottom at which relator appeared with counsel appointed by the Supreme Court. Upon return of the record to this Court, the matter was listed for argument. Counsel for relator and the Assistant District Attorney of Fayette County appeared at the oral argument.

Relator in this habeas corpus proceeding had been convicted on two separate occasions. In May, 1940, he was convicted in the Court of Quarter Sessions of Erie County, as of No. 11, May Sessions, 1940, of robbery, and was sentenced to serve a term of not less than four years nor more than eight years, in the Western State Penitentiary, effective from March 9, 1940. On May 9, 1945, he was released on parole after serving five years and two months of his sentence. While on parole he committed[165 Pa.Super. 540] a new offense and was convicted in the Court of Oyer and Terminer of Fayette County as of No. 32/180, September Sessions, 1946, of assault and battery with intent to rob, and was sentenced on October 1, 1946, to a term of not less than four years nor more than eight years in the Western State Penitentiary. He was returned to the penitentiary on October 2, 1946.

Relator in his petition for writ of habeas corpus asserted that his conviction and his commitment by the Court of Oyer and Terminer of Fayette County were erroneous, defective, and illegal for the following reasons: (1) That 'he was not permitted to attend his own trial from beginning to end'; (2) that 'he was deprived of a full and fair trial as guaranteed to every individual'; (3) that 'he was deprived of his right to file [a motion for new trial] by reason of fact that he had no knowledge of the jury's verdict until after the time to file a motion had elapsed'; (4) that 'he was deprived of his right to have the jury polled, by reason of fact that the verdict had been recorded and the jury had been dismissed long before he had any knowledge of the fact that the jury had reached or rendered a verdict'; (5) that 'the court lost its power to impose sentence on October 1, 1946, since no order was made * * * deferring or suspending sentence in the September term of court.'

Relator now contends that he should be discharged from further confinement, he having supported by competent testimony the material allegations of his petition for a writ of habeas corpus.

The records do not affirmatively show that relator was present at the time the jury returned its verdict of guilty of September 13, 1946. Relator was represented throughout his trial by his attorney, Honorable Anthony J. Cavalcante, and...