COM. Ex Rel. GEARHART v. Cavell

187 Pa. Superior Ct. 464 (1958)

Commonwealth ex rel. Gearhart, Appellant, v. Cavell.

Superior Court of Pennsylvania.

Submitted June 16, 1958.

September 11, 1958.

Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.

*465 Carl Sylvester Gearhart, appellant, in propria persona.

Harold F. Kerchner, District Attorney, for appellee.

OPINION BY GUNTHER, J., September 11, 1958:

This appeal is from the dismissal of relator's petition for writ of Habeas Corpus. At No. 1 June Sessions, 1955, relator, Carl Sylvester Gearhart, entered pleas of guilty to two separate charges of burglary and was sentenced to a term of not less than two nor more than four years in the State Penitentiary. Previous to this sentence, relator was on parole from a sentence of two to fifteen years in the Western State Penitentiary imposed in 1952. When he was returned to the Western State Penitentiary, he began serving his back time for violation of parole and was still serving the unexpired time of his first sentence when the instant petition for writ of Habeas Corpus was filed in the court below. The court below dismissed the petition for the reason that relator was not imprisoned under the sentence to which he objects but was serving a sentence for parole violation. From this adjudication, relator has appealed.

The disposition made by the court below must be affirmed. We have held that the writ of Habeas Corpus cannot be used to challenge a sentence which the relator is not serving. See Commonwealth ex rel. Brockway v. Keenan, 180 Pa. Superior Ct. 78, 118 A.2d 255; Commonwealth ex rel. Thompson v. Day, 182 Pa. Superior Ct. 644, 128 A.2d 133.

The order of the court below is affirmed.