189 Pa. Super. 270 | Pa. Super. Ct. | 1959
Opinion by
On August 28, 1958, Jesse Tancemore, an inmate of the Eastern State Penitentiary, petitioned the Court of- Common Pleas of Philadelphia County for a writ of habeas corpus. A rule to show cause was granted, returnable September 12, 1958, and the petitioner was permitted to proceed in forma pauperis. On October 9, 1958, Judge Waters entered an order dismissing the petition. On October 28, 1958, Tancemore filed a motion for a re-hearing, which was refused forthwith. This appeal followed.
The record discloses that, on September 29, 1949, appellant was tried without a jury and convicted before the late Judge Crumlish on Bill No. 328 September Term 1949 charging burglary. He was committed to the Pennsylvania Industrial School at Camp Hill, sentence to be computed from September 3, 1949. His maximum term was. accordingly set to expire on September 3, 1969. Appellant was paroled on April. 4,
In his brief appellant advances six contentions, the first, three of which are as follows: “1. The defendant was not advised of his Constitutional Eights not to answer any questions.. 2. The defendant was. not advised that anything he said would be used against him. 3. The defendant was denied a prompt hearing”. These contentions were not advanced in appellant’s petition for the writ, nor raised in the court below. See Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A. 2d 530. They have no merit and, in any event, would not be ground for habeas corpus after conviction: Commonwealth ex rel. Sickler v. Myers, 188 Pa. Superior Ct. 541, 149 A. 2d 178.
Appellant’s fourth contention is “that he was given an illegal and excessive sentence”. At the time of his Sentence, appellant was also before the court as the result of a plea of guilty on Bill No. 327 September Sessions 1949, in which he was charged with conspiracy to commit .burglary, and also a plea of guilty on Bill No. 329 September Sessions 1949, in' which he was charged with possession of burglary tools. Appellant was sentenced on only one of. the three indictments. He was less .than twenty-one years of age,- and eorrimit.ment to the Pennsylvania Industrial .School was entirely proper.
On February 27, 1959, the District Attorney of Philadelphia County filed a motion to quash this appeal on the ground that appellant had failed to file a writ of certiorari with the Prothonotary of the Court of Common Pleas as required by Section 2 of the Act of May 19, 1897, P. L. 67, 12 P.S. 1134. The writ was actually filed in the court below on March 6, 1959, and the record was returned to this court on March 10, 1959. We do not condone appellant’s delay in perfecting his appeal. HoAvever, he is under confinement and proceeding Avithout counsel. Since we have passed on the merits, the motion to quash is dismissed.
The order of the court below is affirmed.