Opinion
September 12, 1961.
November 16, 1961.
Criminal Law — Practice — Habeas corpus — Premature application before expiration of admittedly valid minimum sentence — Allegations as to absence of preliminary hearing, knowledge of crime charged, and sufficiency of evidence.
1. An application for a writ of habeas corpus is premature if made before the expiration of an admittedly valid minimum sentence.
2. In a habeas corpus proceeding, in which it appeared that relator contended that he had not received a preliminary hearing, that he did not have any information or knowledge of the crime of which he was charged prior to trial, and that the evidence adduced at trial was insufficient to warrant a finding of guilty to a robbery charge; and that the court below, holding that the matters presented by relator were not cognizable by writ of habeas corpus and, also, that on the merits there were no issues requiring an award of the writ, dismissed the petition; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 257, Oct. T., 1961, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1961, No. 2005, in case of Commonwealth ex rel. Clinton Woodson v. David N. Myers, Superintendent. Order affirmed.
Same case in court below: 25 Pa. D. C. 2d 373.
Habeas corpus.
Order entered dismissing petition, opinion by CARROLL, P.J. Relator appealed.
Clinton Woodson, appellant, in propria persona.
Arlen Specter, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Submitted September 12, 1961.
On June 26, 1956, appellant was sentenced to a term of not less than two years nor more than ten years on a bill of indictment charging robbery. The effective commitment date was February 28, 1955. On May 28, 1959, appellant was paroled. On March 27, 1960, the appellant was convicted on bills Nos. 455 and 456, April Sessions, 1960, for robbery, aggravated assault and battery, and assault and battery. He was sentenced to the State Correctional Institution at Philadelphia for a term of not less than three years nor more than ten years on bill No. 455, and a term of not less than one and one-half years nor more than three years on bill No. 456, the sentences to run concurrently. The appellant is now serving the unexpired balance of the sentence from which he had been paroled. The release date on this sentence is March 2, 1966. Appellant has appealed from bill No. 455.
An application for a writ of habeas corpus is premature if made before the expiration of an admittedly valid minimum sentence. Com. ex rel. Thompson v. Day, 182 Pa. Super. 644, 646, 128 A.2d 133. See Com. ex rel. Gearhart v. Cavell, 187 Pa. Super. 464, 465, 144 A.2d 451. However, the order of the court does not rest on that ground alone. Every phase of the application was explored on the merits and no issues of fact were found requiring an award of the writ.
The order of the court below is affirmed on the opinion of Judge CARROLL of the Court of Common Pleas No. 2 of Philadelphia County, as reported in 25 Pa. D. C. 2d 373.