Com. ex rel. Rook v. Myers
| Decision Date | 04 January 1961 |
| Citation | 167 A.2d 274,402 Pa. 202 |
| Parties | COMMONWEALTH ex rel. Elmer L. ROOK, Appellant, v. David N. MYERS, Supt. |
| Court | Pennsylvania Supreme Court |
Elmer L. Rook in pro. per.
H F. Bonno, Dist. Atty., Shamokin, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.
The order of the court below denying the relator's petition for a writ of habeas corpus is affirmed on the opinion of Judge Troutman.
A petition for a writ of habeas corpus was presented to the Court by the relator, Elmer Rook, who is confined in the State Correctional Institution located at Graterford, Pennsylvania. A rule was granted upon the warden of the said institution to show cause why a writ of habeas corpus should not issue. An answer was filed by David N. Myers, the warden. Subsequent to the filing of this petition, the relator filed additional reasons in support of his petition. The Court appointed counsel for the relator and on the return day of the writ the district attorney and counsel for the relator appeared before the Court, it being represented to the Court that there were no factual questions involved and that there was no reason for the appearance of the relator at the hearing. The Court was of the same opinion and the matters were orally argued before the Court.
The relator was indicted on November 25, s958, to No. 63 December Sessions, 1958, in the Court of Quarter Sessions of Northumberland County, on an indictment charging murder. The case was certified to the Court of Oyer and Terminer and General Jail Delivery for trial. On January 27, 1959, the defendant, accompanied by his counsel, appeared in court and after the indictment was read to him, the defendant entered a plea of guilty.
On January 30, 1959 and on Fubruary 2, 1959, hearings were held before the Court en banc, composed of the duly elected judges of the Eighth Judicial District, President Judge Fortney and Judge Troutman, at which time testimony was taken in behalf of the Commonwealth and the defendant. After oral arguments, on August 3, 1959 the Court en banc filed a written opinion and ordered and adjudged the defendant guilty of murder in the first degree with the penalty fixed at life imprisonment and directed that he be present for sentence before the Court on August 17, 1959. On that date the defendant was sentenced to be committed to the Eastern Correctional Diagnostic and Classification Center, located at the Eastern State Penitentiary, Philadelphia, Pennsylvania, for placement in a suitable state institution for the term of his natural life said sentence to date from the date of commitment to the Northumberland County Prison, namely, September 27, 1958.
The first question raised by the relator is to the effect that he was denied his constitutional rights of due process and equal protection of the laws when the prosecuting official by the use of false, untrue, conflicting perjured evidence and testimony, caused petitioner's conviction of murder in the first degree. We have carefully read the testimony of all of the witnesses in this case and while there are some discrepancies in the testimony of several of the witnesses, there is no indication whatsoever of even a suspicion of perjury. A mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not, in itself, indicate perjury on the part of the witness, or that the defendant was convicted on perjured testimony, and is not, of itself, sufficient to compel a new trial, Commonwealth v. Carter, 272 Pa. 551, 555, 116 A. 409, much less to be the basis for a writ of habeas corpus. Commonwealth ex rel. McCurdy v. Burke, 175 Pa.Super. 482, 487, 106 A.2d 684.
It is well settled that alleged trial errors are not the subject of relief in a habeas corpus proceeding. Commonwealth ex rel. Lancaster v. Johnston, 181 Pa.Super. 561, 563, 124 A.2d 132. The competency and credibility of witnesses who appeared before the Court on the defendant's plea of guilty were entirely for the hearing judges. A writ of habeas corpus may not be used as a substitute for appeal. Commonwealth ex rel. Nibbio v. Johnston, 188 Pa.Super. 547, 149 A.2d 677; Commonwealth ex rel. Mitchell v. Myers, 188 Pa.Super. 544, 149 A.2d 901.
We find no merit in the first question raised by the relator in support of his petition for a writ of habeas corpus.
The second reason assigned by the relator in support of his petition for a writ of habeas corpus is to the effect that he was proceeded against and sentenced by a Court lacking authority to do so, it being the contention of the relator that a Court en banc must be comprised of three judges and that in the instant case the Court consisted of only two judges.
We find no merit in this contention. The Court in the Eighth Judicial District consists of two judges of the Court of Common Pleas who are authorized to sit as judges in the Court of Oyer and Terminer and General Jail Delivery. It has been repeatedly held that a Court en banc is properly constituted if a majority of the available judges take part. There being but two judges in the Eighth Judicial District, the two duly elected judges comprise the Court en banc.
Furthermore, it has been held that one judge can hold a Court of Oyer and Terminer in homicide cases and may proceed by an examination of witnesses to determine the degree of crime and give sentence accordingly of one indicted for murder and convicted by confession. Commonwealth ex rel. Pickwell v. Burke, 372 Pa. 450, 93 A.2d 482. See also United States ex rel. Herge v, Commonwealth of Pennsylvania, D.C.1950, 89 F.Supp. 636.
The third reason assigned by the relator in support of his petition for a writ of habeas corpus is that the indictment is not valid since it is a multi-type indictment charging several crimes or degrees of crime contrary to the due process clause and not in compliance with the Pennsylvania Criminal Code and procedure. 19 P.S. § 1 et seq.
We find no merit in this contention on the part of the relator. As a matter of fact, the indictment is a very simple one charging the defendant with having feloniously, willfully, and with his malice aforethought making an assault upon one, Willliam Edward Kramer, and then and there feloniously, willfully, and of his malice aforethought did kill and murder. There certainly is no multiplicity of charges present in the indictment to which the defendant entered a plea of guilty.
The fourth reason assigned by the relator in support on his petition is that the plea of guilty entered on the indictment was obtained as a result of intimidation, threats and promises made by his Courtappointed attorneys. The relator in his supplemental petition states that prior to arraignment, his attorneys told him that if he would plead guilty to the crime he would receive no more than five to ten years but that if he would not plead guilty he could be sentenced to death or life imprisonment. He further states that the attorneys threatened to withdraw from the case if he would not plead guilty. He further contends that when he was sentenced to life imprisonment his counsel told him that it was a shock to them.
Under this reason the relator also contends that his counsel failed to subpoena witnesses whom he had requested to appear in his behalf. The relator's primary complaint appears to be his dissatisfaction in the manner in which his c...
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