Com. ex rel. Banker v. Maroney

• Decision Date: 12 December 1962
• Citation: 186 A.2d 439,199 Pa.Super. 570
• Parties: COMMONWEALTH of Pennsylvania ex rel. John BANKER, Appellant, v. James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh, Pa.
• Court: Pennsylvania Superior Court

Page 439

186 A.2d 439

199 Pa.Super. 570

COMMONWEALTH of Pennsylvania ex rel. John BANKER, Appellant, v. James F. MARONEY, Superintendent State Correctional

Institution, Pittsburgh, Pa.

Superior Court of Pennsylvania.

Dec. 12, 1962.

Application for Allocatur Denied March 1, 1963.

John Banker, appellant, in pro. per.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Dist. Atty., Pittsburgh, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

WOODSIDE, Justice.

The petitioner in this habeas corpus case was convicted by a jury on two charges of armed robbery. After a motion for a new trial was argued and refused, he was sentenced on March 20, 1961, to imprisonment for a term of 8 to 16 years. He did not appeal from the sentence, but eleven months later filed this petition for a writ of hebeas corpus.

The petition averred in substance that the indictment was defective; that the Commonwealth's witness had committed perjury; that the court had committed error in admitting certain evidence; and that the petitioenr was not present when the verdict was recorded. The court below, by order dated May 10, 1962, held that the petition had no merit on its face and dismissed the petition. The relator appealed to this Court.

A petition for a writ of habeas corpus cannot be used as a substitute for an appeal. Matters reviewable on an appeal will not be considered in a habeas corpus proceeding. Commonwealth ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333 (1960); Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535, 143 A.2d 660 (1958); Commonwealth ex rel. Murray v. Keenan, 186 Pa.Super. 107, 140 A.2d 361 (1958). This applies to cases where the defendant was not present when the verdict was taken. Commonwealth ex rel. Baxter v. Ashe, 368 Pa. 629, 84 A.2d 186 (1951); Commonwealth ex rel. Aldrich v. Ashe, 149 Pa.Super. 25, 26 A.2d 211 (1942).

Order affirmed.