Com. ex rel. Lockhart v. Myers

• Court: Superior Court of Pennsylvania
• Writing for the Court: WRIGHT
• Citation: 193 Pa.Super. 531,165 A.2d 400
• Parties: COMMONWEALTH of Pennsylvania ex rel. Sylvester LOCKHART, Jr., Appellant, v. David N. MYERS, Superintendent, State Correctional Institution at Graterford, Pennsylvania.
• Decision Date: 16 November 1960

Page 400

165 A.2d 400 193 Pa.Super. 531 COMMONWEALTH of Pennsylvania ex rel. Sylvester LOCKHART,
Jr., Appellant,
v.
David N. MYERS, Superintendent, State Correctional
Institution at Graterford, Pennsylvania. Superior Court of Pennsylvania. Nov. 16, 1960.

[193 Pa.Super. 534]

Page 402

Sylvester Lockhart, Jr., in pro. per.

Domenick Vitullo, Asst. Dist. Atty., Paul M. Chalfin, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.

[193 Pa.Super. 533] Before RHODES, P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS and MONTGOMERY, JJ.

[193 Pa.Super. 534] WRIGHT, Judge.

Sylvester Lockhart, Jr. has appealed from an order of Court of Common Pleas No. 5 of Philadelphia County, entered April 28, 1960, dismissing his petition for a writ of habeas corpus. We have carefully reviewed the voluminous original trial record, which discloses the following factual situation:

On February 5, 1954, appellant, in company with Nathanial R. Spencer, Emmit Bethea, and Robert W. Batchelor, committed an armed robbery on the premises of the United Provision Company, 221 Noble Street, in the City of Philadelphia. It is a fair inference from the testimony that appellant was the ring leader. It was he who carried the gun, threatened the employes and customers, and personally took the payroll money and the wallets of the individual victims. Appellant was apprehended on February 18, 1954. On February 19, 1954, he was given a preliminary hearing, which was continued until February 24, 1954. At [193 Pa.Super. 535] that hearing, he was identified by several witnesses. As a result, appellant was held without bail for court. At March Sessions 1954, the grand jury returned

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true bills against appellant as follows: Bill No. 138 charging robbery of Samuel Skversky, Bill No. 139 charging robbery of Samuel Cohen, Bill No. 140 charging robbery of the company payroll funds, Bill No. 141 charging robbery of Emanuel Gordon, and Bill No. 142 charging robbery of Lamar Collins. At arraignment, appellant pleaded not guilty to these five bills of indictment. On July 1 and 2, 1954, he was tried before President Judge Sloane and a jury. Related indictments against Spencer, Bethea and Batchelor, were tried at the same time. Each defendant was represented by his own attorney. At the conclusion of the trial, the jury found appellant guilty on each indictment. There were no motions for new trial or in arrest of judgment. Appellant was sentenced on Bills Nos. 138 and 139 to consecutive terms of 10 to 20 years. Sentence was suspended on the other bills. Appellant is presently confined in the State Correctional Institution at Graterford. It should be noted that, at the time of the United Provision Company robbery, he was on parole from a previous sentence. Upon his commitment on the present sentences, it was first necessary for him to serve the unexpired portion of the prior sentence. Cf. Commonwealth ex rel. Cooper v. Banmiller, Pa.Super., 165 A.2d 397.

The instant petition covers some 40 pages, and the brief on this appeal is of equal length. Both are prolix, verbose, and redundant. While strict rules of pleading do not apply to petitions for habeas corpus, some legal definiteness and certainty is required. Commonwealth ex rel. Kennedy v. Mingle, 388 Pa. 54, 130 A.2d 161. Appellant's statement of the nine questions allegedly involved covers four typewritten pages. [193 Pa.Super. 536] None of his contentions reveal any merit. They are mainly concerned with purported trial errors which should have been tested by a motion for new trial or in arrest of judgment. It is well established that relief from alleged trial errors may not be obtained by habeas corpus. The writ is not a substitute for a motion for new trial or an appeal ¹. Nevertheless, and with the hope that further proceedings may thus be obviated, we will discuss and answer appellant's several complaints.

Appellant's first four contentions may be treated together. He complains that he was not accorded a proper preliminary hearing, that it was not complete, that all five indictments were not supported by informations, and that he was not faced at the hearing by all of his accusers. A variance between the information and the indictment is not a valid ground upon which to base a reversal of judgment after the defendant has gone to trial. Commonwealth v. Bradley, 16 Pa.Super. 561; Commonwealth v. Zayrook, 30 Pa.Super. 111; Commonwealth ex rel. Tyson v. Day, 181 Pa.Super. 259, 124 A.2d 426. After a [193 Pa.Super. 537] plea and trial on the merits, the defendant may not by habeas corpus attack the sufficiency of the indictment. Commonwealth ex rel. Burge v. Ashe, 168 Pa.Super. 271, 77 A.2d 725; Commonwealth ex rel. Sell v. Tees, 179 Pa.Super. 549, 117 A.2d 813; Commonwealth ex rel. Shultz v. Myers, 182 Pa.Super. 431, 128 A.2d 103. Defects and irregularities in the information, warrant and proceedings before the magistrate are cured by pleading to the indictment and going to

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trial. Commonwealth v. Schoen, 25 Pa.Super. 211; Commonwealth ex rel. Rushkowski v. Burke, 171 Pa.Super. 1, 89 A.2d 899; Commonwealth v. George, 178 Pa.Super. 261, 116 A.2d 253. The sufficiency or regularity of proceedings prior to indictment may not be considered on habeas corpus. Commonwealth ex rel. Giesel v. Ashe, 165 Pa.Super. 41, 68 A.2d 360; Commonwealth ex rel. Scasserra v. Keenan, 175 Pa.Super. 636, 106 A.2d 843; Commonwealth ex rel. Scasserra v. Maroney, 179 Pa.Super. 150, 115 A.2d 912; Commonwealth ex rel. Taylor v. Johnston, 181 Pa.Super. 600, 124 A.2d 389.

Appellant's fifth and sixth contentions, in sum, are that he was subjected to 'double jeopardy'. It should be noted that this plea is available in capital cases only. Commonwealth v. Beiderman, 109 Pa.Super. 70, 165 A. 765; Commonwealth ex rel. Wallace v. Burke, 169 Pa.Super. 633, 84 A.2d 254. Moreover, it does not form the basis for a writ of habeas corpus. Commonwealth ex rel. Ross v. Egan, 281 Pa. 251, 126 A. 488; Commonwealth ex rel. Wagner v. Day, 178 Pa.Super. 506, 115 A.2d 404. Appellant's complaint is based on his allegation that only one crime was committed. He asserts that the entire transaction at the United Provision Company constituted but one offense, for which he was indicted five times. [193 Pa.Super. 538] He therefore argues that, while Bill No. 140 may have been proper, Bills Nos. 138, 139, 141 and 142 covered the same offense as that charged in Bill No. 140. As previously stated, Bill No. 140 charged the robbery of the company payroll. The other bills each charged robbery from an individual victim, committed during the course of the payroll robbery. Where separate crimes are committed against different individuals, a defendant is not placed in double jeopardy by being tried for each. Commonwealth v. Valotta, 279 Pa. 84, 123 A. 681; Commonwealth v. Melissari, 298 Pa. 63, 148 A. 45; Commonwealth ex rel. Kitzinger v. Claudy, 173 Pa.Super. 453, 98 A.2d 457. Thus, where two robberies are committed, the defendant may be convicted and sentenced for each offense, even though both took place at the same place and at approximately the same time. Commonwealth ex rel. Otten v. Smith, 126 Pa.Super. 238, 190 A. 525; Commonwealth ex rel. Spencer v. Banmiller, 186 Pa.Super. 99, 140 A.2d 860. A person committing several distinct acts defined as crimes by statute may not justly complain of being prosecuted and punished for all of them. Commonwealth v. Taylor, Pa.Super., 165 A.2d 394. See also Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920; Commonwealth ex rel. Madden v. Ashe, 162 Pa.Super. 39, 56 A.2d 335; Commonwealth ex rel. Comer v. Claudy, 174 Pa.Super. 494, 102 A.2d 227; Commonwealth v. Yarmark, 185 Pa.Super. 276, 137 A.2d 836; Commonwealth v. Williams, 187 Pa.Super. 295, 144 A.2d 634.

Appellant's seventh contention is that the trial judge erred in his charge to the jury. Not one of defense counsel took any exception to the charge, or suggested any addition or correction, although given the opportunity to do so. Appellant has quoted certain[193 Pa.Super. 539] passages from the charge which he contends are prejudicial. Even as isolated excerpts, they do not appear erroneous. When read in context they are wholly free from objection. Where the charge as a whole is adequate, the trial court need not use any particular language, and excerpts from the charge must be read in context. Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207. Particularly is this true where not even a general exception is taken. Commonwealth v. Heatter, 177 Pa.Super. 374, 111 A.2d 371. Furthermore, complaints as to the trial judge's charge must be raised by appeal, and may not be made by habeas corpus. Commonwealth ex rel. Sharpe v. Burke, 174 Pa.Super. 350, 101 A.2d 397; Commonwealth ex rel. Patrick v. Banmiller, 398 Pa. 163, 157 A.2d 214.

Appellant's eighth and ninth contentions are that certain proceedings were conducted in his absence, wherefore

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he was denied his constitutional rights. He first complains that certain bills of indictment were severed prior to trial, at a time when he was not present. The consolidation or separation of indictments is a matter for the trial judge, whose determination will be reversed on appeal only for obvious abuse of discretion or prejudice to the defendant. Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 151 A.2d 480. See also Commonwealth v. Kloiber, 174 Pa.Super. 483, 101 A.2d 444; Commonwealth v. Patrick, 174 Pa.Super. 593, 101 A.2d 139; Commonwealth v. Ackerman, 176 Pa.Super. 80, 106 A.2d 886. In the instant case, as already indicated, the indictments were severed prior to trial. Conceding that the defendant has a right to be present during all stages of the trial itself, this right does not extend to purely procedural matters preparatory to trial. Nor has appellant cited any authority for his [193 Pa.Super. 540] position. Moreover, he does not claim that...