Commonwealth Ex Rel. Lieberman v. Burke, Warden

44 A.2d 597, 158 Pa. Super. 207, 1945 Pa. Super. LEXIS 476

• Court: Superior Court of Pennsylvania
• Decided: November 21, 1945
• Docket: 387, Misc. Docket 5
• Status: Published

Opinion

Per Curiam,

The relator has filed a petition for a writ of habeas corpus. The facts are clearly stated in an opinion by this Court in a former proceeding. Com. ex rel. Lieberman v. Smith, 152 Pa. Superior Ct. 1, 30 A. 2d 625, and it is unnecessary to repeat them. Admittedly the relator is legally, confined. By his own averments his minimum sentence will not expire until October 17, 1947, and the maximum sentence will not expires until October 17, 1957. A writ of habeas corpus may not be invoked where the relator is legally confined in prison and admittedly is not eligible for discharge for a substantial period of time. Com. ex rel. Padmonsky v. Smith, 127 Pa. Superior Ct. 24, 191 A. 684; Com. ex rel. Stauffer v. Ashe, 141 Pa. Superior Ct. 407, 15 A. 2d 409.

Furthermore, this petition presents no legal issues not raised, considered and decided in the former proceeding. We there specifically held that the penitentiary authorities had properly computed the date of commencement of the sentence imposed on Bill No. 246, October Sessions, 1937, Philadelphia County, citing as authority therefor, Com. ex rel. Lerner v. Smith, 151 Pa. Superior Ct. 265, 30 A. 2d 347. Subsequent to the filing of the opinion by this Court in the first proceeding, the Supreme Court has adopted our decision in Com. ex rel. Lerner v. Smith, supra. See Com. ex rel. Wheeler v. Smith, 104 Misc. Dkt. No. 8.

Writ is refused.