180 Pa. Super. 462 | Pa. Super. Ct. | 1956
Opinion by
This habeas corpus proceeding involves the question of venue. The Court of Common Pleas of Lehigh County dismissed appellant’s petition without hearing and this appeal followed.
Relator, Nicholas Tiscio, after conviction in Lehigh County, was sentenced on January 23, 1939 on four bills of indictment, three of which charged burglary and the fourth which charged larceny and receiving stolen goods. He received sentences of from two and one-half to five years on each, to be served consecutively and it was directed by reason of credits for previous incarceration, that the first sentence be computed as running from November 23, 1938. After serving about nine and one-half years,-he was paroled on May 18, 1948,- and was recommitted on July 8, 1952 because of his conviction of a crime while on parole. He was denied credit against thé balancé of his maximum sentence for this time spent on parole. Com. ex rel. O’Leary v. Ashe, 152 Pa. Superior Ct. 322, 324, 32 A. 2d 36; Com. ex rel. Carmelo v. Burke, 168 Pa. Superior Ct. 109, 116, 78 A. 2d 20 (See Act of August 6, 1941, P.L. 861, as amended
The Act of May 25,1951, P.L. 415 sec. 1, 12 P.S. sec. 1901, relating inter alia to venue in habeas corpus proceedings provides for general jurisdiction in any judge of a court of common pleas of this Commonwealth, but limits the venue to a judge of the judicial district wherein the relator is confined or to the judge of the judicial district responsible for relator’s commitment, with this
Relator in the instant case is confined in the Northampton County Prison by virtue of his conviction and sentencing by the Northampton County Court. The only connection Lehigh County has with his confinement is that there is outstanding a parole detainer which is based upon his unserved maximum sentence as imposed in 1939 on his Lehigh County conviction. This parole detainer means only that at the expiration of his Northampton County sentence he will be further detained to await transfer to the Eastern State Penitentiary, and while the fact of his parole violation may have influenced the judge in Northampton County, by no legal reasoning can it be said that his imprisonment
Although there is no merit in any of appellant’s contentions we will discuss them briefly in the hope that by so doing we will eliminate any subsequent proceeding by him raising the same questions.
He contends first that his 1939 sentences have expired and that the parole detainer is therefore void. His reasoning is that the maximum of each prior sentence ran concurrently with the minimum of the next sentence, even though there was no constructive parole granted at the end of each minimum. See discussion in Com. ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 30, 31, 20 A. 2d 881. We do not agree and when we considered this very same question on this very same reasoning in his prior appeal, we concluded that his maximum sentences, imposed in 1939, would not expire until November 23, 1958. Of course, the events occurring since that time have modified this date. His resentence on the larceny charge reduced it by at least two years, but the denial of about three and 3/4 years parole credit in 1952 and nine and 1/2 months in 1955 extended the expiration date of his maximum. Cf. Com. ex rel. Reynolds v. Burke, 173 Pa. Superior Ct. 146, 148, 96 A. 2d 193. Relator feels that his maximum cannot be continually extended or he will never finish serving it. The obvious answer is that the fault lies solely with him, for if he behaved while on parole, he would not find himself the object of recalled executive grace. In Narcise v. Board of Trustees, Eastern State Penitentiary, 137 Pa.
The maximum sentence remains as originally imposed, and though its service may extend over a longer period of time, Tiscio will not be required to serve in terms of time, a composite period longer than his maximum. Cf. Com. ex rel. Carmelo v. Burke, 168 Pa. Superior Ct. 109, 78 A. 2d 20. He cannot complain of the withdrawal of parole credit when his abuse indicates that he was not worthy and appreciative of it in the first instance.
Tiscio finally attacks the Act of 1937, supra, 19 P.S. sec. 879 as being unconstitutional because it allows a computation together, for parole purposes, of all consecutive sentences imposed at the same time by the same court. We also considered this very question in his prior appeal and resolved it against him. The constitutionality of the Act of 1937 was established without question in Com. ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 32, 20 A. 2d 881. Sentences cannot be lumped upon the records, Com. ex rel. Cox v. Ashe, 146 Pa. Superior Ct. 365, 22 A. 2d 606, but there is nothing to prohibit an aggregate computation for parole purposes as allowed by the Act. Lyeett and prior Tiscio cases, supra. The Act of 1937 is constitutional and as applied here indicates that Tiscio was on parole at the time of his conviction in Northampton County. In this respect then the parole detainer is valid. It is beyond our province to examine the Parole Board’s discretion in granting, refusing, or recalling any parole it may
Order affirmed.
Of course, original jurisdiction in habeas corpus still lies in the Supreme Court as well as this Court; though, generally, it will be exercised only where there exists “imperative necessity or apparent reason why expedition is desirable or required,” as that is determined by the discretion of the Court; Com. ex rel. Paylor, supra, 366 Pa. 282, 287, 77 A. 2d 350. The obvious reason for this is that'in the absence of such necessity, the pleadings and factual issues are best resolved in the lower court from whose decree an appeal will lie. Cf. Com. ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A. 2d 281; Com. ex rel. Sawchak v. Ashe, 169 Pa. Superior Ct. 529, 537, 83 A. 2d 497, allocatur refused, 169 Pa. Superior Ct. xxvi, certiorari refused by U. S. Supreme Court, 171 Pa. Superior Ct. xxiii, where we sent the petition, originally filed in our Court, to the lower court for determination of the factual issues.
