Commonwealth ex rel. Zarozny v. Dennison

11 Pa. D. & C.2d 738, 1958 Pa. Dist. & Cnty. Dec. LEXIS 365

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: February 7, 1958
• Docket: no. 2611
• Status: Published

Opinion

Reimel, J.,

This is a petition for a writ of habeas corpus. Relator was convicted of fraudulent conversion and sentenced to imprisonment in the Eastern State Penitentiary for a period of from two and a half to five years.

In a prior petition for a writ of habeas corpus filed January 7, 1957, as of Court of Common Pleas No. 5, December term, 1956, no. 3391, President Judge Bok, in an opinion dated March 15, 1957, held that the sentence should have been to the county prison since the offense carries only simple imprisonment. At that time relator also urged that since he was erroneously sentenced and confined in the penitentiary, and since imprisonment in the penitentiary is considered more onerous than imprisonment in the county prison, a formula of two to one, or two and a half to one should be applied, and he should therefore receive multiple day credits for every day erroneously confined. President Judge Bok disposed of this contention on the merits-and denied any change in the duration of sentence based upon said grounds. No appeal was taken from this ruling.

The present petition is merely repetitious. No new contention is advanced. Matters which have been adjudicated in one habeas corpus proceeding may not be reexamined in a subsequent proceeding: Commonwealth ex rel. Herge v. Martin, 387 Pa. 117; Commonwealth ex rel. Allen v. Claudy, 170 Pa. Superior Ct. 499. Moreover, the courts have repeatedly held that a petition for a writ of habeas corpus which is repetitious of a previous petition should be dismissed, for a second petition cannot be employed as a device to secure subsequent appellate review of adjudicated matters from which a timely appeal could have been taken: Commonwealth ex rel. Henrickson v. Hendrick, 181 Pa. Superior Ct. 45; Commonwealth ex rel. Allen v. Claudy, supra. Accordingly, relator’s petition for a writ of habeas corpus is dismissed.