Com. ex rel. Leeper v. Russell

• Decision Date: 13 September 1962
• Citation: 199 Pa.Super. 93,184 A.2d 149
• Parties: COMMONWEALTH ex rel. Alfred J. LEEPER, Appellant, v. Harry E. RUSSELL, Appellee.
• Court: Pennsylvania Superior Court

Page 149

184 A.2d 149

199 Pa.Super. 93

COMMONWEALTH ex rel. Alfred J. LEEPER, Appellant, v. Harry E. RUSSELL, Appellee.

Superior Court of Pennsylvania.

Sept. 13, 1962.

Application for Allocatur Denied Nov. 15, 1962.

Alfred Leeper, appellant, in pro. per.

W. Thomas Malcolm, Submitted, Indiana County (Dist. Atty.), for appellee.

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

WRIGHT, Judge.

Alfred James Leeper has appealed from an order of the Court of Common Pleas of Indiana County dismissing his petition for a writ of habeas corpus. It will be necessary to briefly set forth the factual and procedural background.

On December 6, 1960, Leeper was indicted at No. 1 March Term 1961, in the Court of Oyer and Terminer of Indiana County on charges of statutory rape and adultery. The case was called for trial on December 12, 1960, before President Judge Edwin M. Clark and a jury. We have carefully examined the original trial record. Hylinda Eleanor Bush, a fourteen year old girl, testified that, after her father's death, Leeper came to live with her mother. Leeper was a married man and his relationship with the child's mother was concededly a meretricious one. Hylinda testified that Leeper had sexual relations with her on frequent occasions. Harry H. Owens, Chief of Police of the Borough of Indiana, testified that Leeper admitted that he had had sexual relations with the child, and wrote in his own hand a statement to that effect. The testimony of Officer Owens was corroborated by that of Columbo Previte, Chief of the Bureau of Criminal Identification, and Leeper's written statement was received in evidence. Dr. Daniel H. Bee testified that the child's hymen had been ruptured. For the defendant-appellant, the child's mother testified: 'I had no reason to distrust him whatever'. However, almost in the same breath, she admitted that she had questioned the girl about Leeper and inquired 'if they had any connection, and she said they tried once and no success'. She further testified that, when she questioned Leeper, he promised 'that he would never bother her again'. Leeper denied any connection with the child, and attempted to explain his oral admission and written statement on the ground that he 'was confused and scared'. Following a comprehensive charge by the trial judge, the jury returned a verdict of guilty, a result which it is not difficult to understand. Leeper was sentenced, December 19, 1960, to serve a term of not less than five nor more than fifteen years. He is presently confined in the State Correctional Institution at Huntingdon.

On July 31, 1961, Leeper's trial counsel filed the instant petition for a writ of habeas corpus. It is based solely on an affidavit by Hylinda Eleanor Bush that her testimony at the trial was false. An answer was filed by the District Attorney and, after argument of counsel, the following order was entered: 'And now, November 1, 1961, the petition for a rule to show cause why writ of Habeas Corpus should not be issued is denied. The Court will, however, set up a day for hearing to take testimony from Hylinda Bush concerning her alleged perjured testimony provided the attorney for Alfred James Leeper files a motion for a new trial.' Leeper's counsel promptly filed a motion for a new trial. What transpired thereafter is set forth in the opinion of the court below as follows:

'A hearing was held ...