Com. ex rel. McDaniel v. Myers

• Decision Date: 13 November 1963
• Citation: 195 A.2d 181,202 Pa.Super. 38
• Parties: COMMONWEALTH of Pennsylvania ex rel. Richard McDANIEL, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: Pennsylvania Superior Court

195 A.2d 181

202 Pa.Super. 38

COMMONWEALTH of Pennsylvania ex rel. Richard McDANIEL, Appellant, v. David N. MYERS, Superintendent, State Correctional

Institution, Graterford, Pennsylvania.

Superior Court of Pennsylvania.

November 13, 1963.

Richard McDaniel in pro. per.

Gordon Gelfond, Asst. Dist. Atty., Arlen Specter, Asst. Dist. Atty Chief, Litigation Division, F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty Philadelphia, for appellee.

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

PER CURIAM.

The order of the court below dismissing petition for writ of habeas corpus is affirmed on the opinion of Judge Sporkin of the Court of Common Pleas No. 2 of Philadelphia County.

The opinion of Judge Sporkin follows:

Relator Richard McDaniel, presented a petition ^[1] for a writ of habeas corpus to obtain his release from State Correctional Institution of Graterford, where he is presently incarcerated. A rule to show cause was allowed, ^[2] returnable before the writer of this Opinion.

Upon examination and consideration of the petition and the trial record, we concluded that there were no factual issues requiring the taking of testimony, and accordingly a hearing was had on May 29, 1963 only on the legal issues involved. ^[3]

The record discloses: that on June 28, 1961 relator came to trial before the Honorable Earl Chudoff, and a jury, on two bills of indictment,--one charging aggravated robbery, and the other conspiracy to commit robbery; that relator was convicted on both bills; that no motion for a new trial was filed nor was an appeal taken; and relator was sentenced to a term of not less than five nor more than ten years. ^[4]

Relator's petition on which the rule issued alleges three principal reasons why relator should be discharged under the writ: FIRST, that his conviction was based on false and perjured testimony; SECOND, that the notes of testimony taken at the preliminary hearing were withheld from him, and that these notes (if made available to him at trial) could have been introduced by relator to reveal that the testimony of the Commonwealth's witnesses was perjured; and THIRD, that relator was deprived of due process of law in violation of the Fourteenth Amendment of the United States Constitution.

We see no merit in relator's first complaint. A careful reading of the entire record discloses no contradictions in the testimony of any of the Commonwealth's witnesses which could support a charge of perjury. The oral statements under oath given by James Dow (the robbery victim), Officer Lemmo, and Detective Bresnahan, before the Magistrate, in our opinion were not in conflict with testimony given by them at the trial. Indeed, if the transcript of the testimony taken at the preliminary hearing had been introduced at trial, not only would it have failed to support a charge of perjury, but rather would have served only to fortify the credibility of the prosecution witnesses.

Even assuming, arguendo, that the Commonwealth's witnesses committed perjury, such a question cannot be properly raised by a petition for writ of habeas corpus. It is well settled that allegations of perjury cannot be considered on habeas corpus proceedings. Com. ex rel. Luzzi v. Tees, 176 Pa.Super. 528, 108 A.2d 921 (1954); Com. ex rel. Koleg v. Ashe, 140 Pa.Super. 215, 14 A.2d 175 (1940).

Relator's second contention is likewise without merit. It is significant to note that relator was represented by able counsel prior to and during the entire course of his trial. Nowhere does it appear of record that relator or his counsel attempted to secure the notes of testimony of the preliminary hearing, either by request of, or motion to, the trial judge. Had the latter course been pursued and the decision been adverse, this complaint, at best, would have constituted an error committed during trial. It is well established that a habeas corpus petition is not the proper remedy for correction of trial errors which could have been the subject to an appeal, nor can it be utilized as a substitute for an appeal, nor for a writ of error or for a motion for a new trial. Com. ex rel. Johnson v. Myers, 402 Pa. 451 167 A.2d 295 (1961); Com. ex rel. Ketter v. Day, 181 Pa.Super....