Commonwealth ex rel. Kerstetter v. Russell
| Decision Date | 26 February 1965 |
| Docket Number | 289 |
| Parties | Commonwealth ex rel. Kerstetter v. Russell |
| Court | Pennsylvania Commonwealth Court |
May term, 1965.
Petition for writ of habeas corpus.
Ronald Kerstetter, p.p., relator.
This petitioner previously presented a petition for a writ of habeas corpus to this court. A hearing was held thereon before the writer of this opinion. Petitioner was present at the hearing and was given full opportunity to present any evidence he desired to present in support of the allegations of his petition. At the conclusion of the hearing, the petition was dismissed by an order dated November 10, 1964. Apparently no appeal has been taken from that disposition.
Now he has presented a second petition addressed specifically to Honorable Robert 1. Shadle of this court. He contends that Judge Shadle must act on this petition since it is addressed to him. No Pennsylvania authority is cited in support of this demand.
It has been the practice of this court to have the judge who presided over the original criminal proceeding to also preside over all proceedings arising out of post sentence motions or petitions such as the instant one, unless there appears to be some valid reason why the sentencing judge should be disqualified, either on his own motion or on cause shown by the parties. No reason is apparent to the writer of this opinion and order that would require him to disqualify himself, nor has any been assigned by the petitioner. We can therefore assume that the motive for his demand is the hope for a better result from the action of another judge than the result he previously obtained. The only authorities cited by him in support of his request are two Federal district court cases; these are Rutkowski v. Johnston, District Court of Cal. 52 F.Supp. 430; and Ex parte Wilson, District Court of Texas, 62 F.Supp. 793. Rutkowski was disapproved by the Circuit Court of Appeals for the Ninth Circuit in the connected case of Rutkowski v. St. Sure, 143 F.2d 715. In United States v. Cavell, 164 F.Supp. 957 Judge Gourley of the Western District of Pennsylvania referred to the above cases and refused to follow the reasoning of the District Court cases in the interpretation of the applicable Federal statute and held that a petition specifically addressed to Judge Marsh of that court could be acted on by any member of the court. It will be noted in this connection, that the Federal district court in both of those cases cited by the petitioner were basing their decision on an interpretation of a federal statute and not on any inherent right of the petitioner in either case to select the judge who was to act on their...
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