Commonwealth Et Rel. Accobacco v. Burke.

• Court: Superior Court of Pennsylvania
• Writing for the Court: RHODES, President Judge.
• Citation: 162 Pa.Super. 592,60 A.2d 426
• Parties: COMMONWEALTH et rel. ACCOBACCO v. BURKE.
• Decision Date: 23 July 1948

162 Pa.Super. 592
60 A.2d 426

COMMONWEALTH et rel. ACCOBACCO
v.
BURKE.

Superior Court of Pennsylvania.

July 23, 1948.

Appeal No. 61, October term, 1948, from the judgment of the Court of Quarter Sessions for the County of Philadelphia, as of No. 6, November term, 1947, Miscellaneous Docket, November 28, 1947; James Gay Gordon, Jr., Presiding Judge.

Habeas corpus proceedings by the Commonwealth, on the relation of Dominick Accobacco, against C. J. Burke, Warden, Eastern State Penitentiary. From a judgment discharging the relator from further imprisonment, the Warden appeals.

Judgment affirmed and relator discharged.

60 A.2d 427

Franklin E. Barr, Asst. Dist. Atty., and John H. Maurer, Dist. Atty., both of Philadelphia, for appellant.

Milton S. Leidner, of Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD, and FINE, JJ.

RHODES, President Judge.

This is an appeal from the judgment of the Court of Quarter Sessions of Philadelphia County discharging the relator, Dominick Accobacco, from further imprisonment.

At the time of application for writ of habeas corpus, the relator was detained in the Eastern State Penitentiary under a sentence of not less than two nor more than four years at solitary confinement, to be computed from November 12, 1946, imposed by the Court of Oyer & Terminer of Philadelphia County on February 28, 1947, upon bill No. 807, March Term, 1939. The issue is whether or not this sentence was correctly computed to run from November 12, 1946. If this is the correct date, the relator's maximum sentence would run until November 12, 1950; but if, as the court below found, the sentence should have been computed to run from March 14, 1939, he is entitled to immediate discharge, inasmuch as he already has served more than the maximum of four years in the Eastern State Penitentiary.

Relator was arrested on March 14, 1939, and held for trial in the Court of Oyer & Terminer of Philadelphia County. He was indicted upon two bills of indictment (Nos. 807 and 808, March Term, 1939) charging armed robbery. After trial and conviction, the court sentenced him on March 28, 1939, to serve consecutive terms in the Eastern State Penitentiary, computed from March 14, 1939, of four to eight years on bill No. 807, and of ten to twenty years on bill No. 808. On April 1, 1939, the court revoked these sentences and permitted relator to file a motion for a new trial. Almost three years later, on March 27, 1942, the court acted upon this motion and awarded a new trial. Meanwhile, the relator remained in the Eastern State Penitentiary. On May 22, 1942, while awaiting a new trial, he was removed from the Commonwealth of Pennsylvania

60 A.2d 428

to the State of New York by extradition proceedings to answer charges in the latter state; a detainer was delivered with him. After he had been convicted and had served the sentence there imposed, he was returned to Pennsylvania by extradition on November 12, 1946. Then, although he had been awarded a new trial, the relator withdrew his plea of not guilty and pleaded guilty to bills Nos. 807 and 808 on January 28, 1947, after which the court, on February, 28, 1947, imposed the sentence complained of in this proceeding, wherein the term of imprisonment was computed from November 12, 1946.

Computation of the term of imprisonment in this case is governed by the Act of May 28, 1937, P.L. 1036, 19 P.S. § 894 et seq., which provides:

‘Section 1. [§ 894] * * *...