Com. ex rel. Reno v. Russell
| Decision Date | 13 June 1962 |
| Parties | COMMONWEALTH ex rel. Frank RENO, Appellant, v. Harry E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pa. |
| Court | Pennsylvania Superior Court |
Frank Reno, in pro. per.
Peter O. Steege, Asst. Dist. Atty., Beaver, for appellee.
Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.
The order of the court below dismissing relator's petition for a writ of habeas corpus is affirmed on the opinion of President Judge Robert E. McCreary.
Complying with the requirements of Rule No. 43 of the Superior Court of Pennsylvania, this memorandum opinion constitutes a brief statement of the reasons for our order of August 3, 1961, refusing to discharge the relator on a writ of habeas corpus.
The relator filed a petition for leave to file and prosecute a petition for a writ of habeas corpus in forma pauperis, and on June 27, 1961, the Court ordered that the petition be filed and that the relator be released from the said State Correctional Institution at Huntingdon, Pennsylvania, into the custody of the Sheriff of Beaver County so that he might be transferred to the Beaver County Jail there to await a hearing on his petition to be held August 3, 1961, at 9:00 o'clock A. M. In that same order the Court appointed Charles M. Marshall, Esq., as attorney to represent Frank Reno, the petitioner, at the hearing.
On August 3, 1961, the matter came on for hearing before the undersigned, and the relator was heard in his own behalf of by his counsel. Many of the bald allegations of fact which he made in support of his petition for discharge on a writ of habeas corpus were not even mentioned by him at the hearing, and some of his allegations are given the lie by the record.
It appears from the record that on the 23rd day of January, 1955, an information was made against petitioner by the Chief of Police of the Borough of West Bridge-water, charging him with burglarizing the Riverside Super Market at West Bridge-water on the 20th day of January, 1955. A true bill was returned on an indictment by the Grand Jury at No. 6 March Term, 1955, in the Court of Oyer and Terminer of Beaver County, Pennsylvania, on March 7, 1955.
The record in the Clerk of Courts Office also shows that on March 10, 1955, Frank Reno made affidavit to the effect that he is without money or assets and to the effect that he cannot pay a lawyer to represent him, and that thereupon, on the same day, the Court appointed E. E. Autenreith, Esq., a member of the Beaver County Bar, as his counsel.
The case came on for trial before the undersigned on March 16, 1955, and on March 17, 1955, the jury returned a verdict of 'guilty as indicted', the indictment containing three counts charging (1) burglary; (2) larceny; (3) receiving stolen goods. No motion for a new trial was filed and no appeal was taken, and the defendant was, on sentence day, sentenced to pay the costs of prosecution, a fine of one dollar and to be committed to the Western Correctional, Diagnostic and Classification Center to undergo imprisonment in a State institution for a term of not less than five years nor more than twenty years.
The record shows, and the relator so testified, that he was paroled in 1958, and later recommitted for violation of his parole. Later on he was re-paroled, and again he was recommitted for violation of his parole. He is presently in the State Correctional Institution at Huntingdon, Pennsylvania.
From the record of his testimony his complaints may be briefly stated as follows:
1. He says that during the trial he requested, he thinks, Eric Simons, Esq., an Assistant District Attorney, to have witnesses subpoened for him, but none were furnished. He admits that he never complained about this to the trial judge.
2. He now asserts that he was nervous when he came into the Court Room because, he claims, he did not know anything about the law, although he admits that just six months prior to his conviction on the charge we are now reviewing he had been in court and had entered a plea of guilty to a charge of attempted burglary, on which charge the Court suspended sentence and placed him on probation for a period of five years.
3. He now complains that he did not expect to be found guilty, because, he claims, he was not guilty, although the jury found him so from a consideration of the believable testimony.
4. He complains that he had discussed his defense with his Court appointed counsel the day before his trial, and that counsel did not go to the scene of the alleged burglary to take fingerprints, and he complains that his counsel did not have witnesses subpoened for him, although he does not claim that he asked his counsel to do so.
5. He complains that the jury found him guilty as indicted on the three counts as set forth in the indictment, namely, burglary, larceny and receiving stolen goods, but insists that the finding of guilty on the charge of receiving stolen goods is inconsistent with the finding by the jury of guilty on a charge of burglary. He admits that he was sentenced on only one charge, namely, that of burglary. He insists that the trial judge, in his charge, did not tell the jury that they could find him guilty of one count and not guilty on the other counts. Of course this is not so, but even if it were it would merely constitute trial error and would be no basis for the granting of a writ of habeas corpus six years after his conviction.
6. He complains...
To continue reading
Request your trial