Com. ex rel. Rogers v. Harris

• Court: Superior Court of Pennsylvania
• Citation: 180 Pa.Super. 323,119 A.2d 862
• Parties: COMMONWEALTH ex rel. Joseph ROGERS, Appellant, v. Robert M. HARRIS, District Attorney of Schuylkill County.
• Decision Date: 17 January 1956

Page 862

119 A.2d 862 180 Pa.Super. 323 COMMONWEALTH ex rel. Joseph ROGERS, Appellant,
v.
Robert M. HARRIS, District Attorney of Schuylkill County. Superior Court of Pennsylvania. Jan. 17, 1956.

[180 Pa.Super. 325]

Page 863

Joseph Rogers, Philadelphia, in pro. per.

C. J. Friedberg, Asst. Dist. Atty., D. W. Bechtel, First Asst. Dist. Atty., Pottsville, R. M. Harris, Dist. Atty., Tamaqua, for appellee.

[180 Pa.Super. 324] Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

[180 Pa.Super. 325] RHODES, President Judge.

This appeal by relator is from an order dismissing his petition for writ of habeas corpus.

The petition was filed on November 16, 1954, ¹ and, although it was captioned in the Court of Common Pleas of Schuylkill County, it was inadvertently marked filed in the court of quarter sessions. Answer was filed thereto by the District Attorney of Schuylkill County. We shall treat the appeal the same as if the proceeding had been properly docketed in the court of common pleas and disposed of therein, as it should have been. Act of May 25, 1951, P.L. 415, § 1, 12 P.S. § 1901.

The real purpose of the application for the writ was to make a sentence imposed by the Court of Oyer and Terminer of Schuylkill County on January 17, 1949 (No. 324, May Term, 1948), ² on a conviction for armed [180 Pa.Super. 326] robbery, for a term of imprisonment of not less than ten years nor more than twenty years in the Eastern State Penitentiary, concurrent with a sentence imposed by the Court of Oyer and Terminer of Lackawanna County on November 29, 1948 (No. 7, May Term, 1948), for a similar term and for a similar offense.

Relator's contentions are that the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894, requires the sentence imposed by the Court of Oyer and Terminer of Schuylkill County to begin on March 4, 1948, when he was first committed to the Schuylkill County prison; and that the sentence being directed to commence at the expiration of sentences theretofore imposed was illegal. ³ Our decision is confined to the question raised on this appeal.

Relator was arrested in Schuylkill County on March 3, 1948, and charged with armed robbery. He was committed to the Schuylkill County prison in default of bail on March 4, 1948. On March 8, 1948, he was removed to Lackawanna County as he was charged with the commission of armed robberies in that county. It appears that his removal to Lackawanna County from the Schuylkill County prison was by virtue of a writ of habeas corpus ad prosequendum directed to the [180 Pa.Super. 327] warden of the Schuylkill County prison. After being given a preliminary hearing he was returned to the Schuylkill County prison on March 10, 1948. He was subsequently indicted by a grand jury in Lackawanna County for several robberies.

On April 21, 1948, relator was indicted by a grand jury in Schuylkill County for armed robbery; he was tried and convicted on this indictment (No. 324, May Term, 1948) on May 13, 1948; he filed, by his counsel, motions for a new trial and in arrest of judgment on May 17, 1948. Sentence

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was deferred pending disposition of the motions.

On September 28, 1948, relator escaped from the Schuylkill County prison. He was later apprehended and charged with prison breach (No. 715, November Term, 1948, in the Court of Quarter...