Com. ex rel. Whalen v. Banmiller

• Citation: 162 A.2d 383,400 Pa. 606
• Parties: COMMONWEALTH of Pennsylvania ex rel. Edward J. WHALEN, Petitioner, v. William J. BANMILLER, Warden, of Eastern State Penitentiary, at Philadelphia, Pennsylvania.
• Decision Date: 08 July 1960
• Court: United States State Supreme Court of Pennsylvania

162 A.2d 383

400 Pa. 606

COMMONWEALTH of Pennsylvania ex rel. Edward J. WHALEN, Petitioner, v. William J. BANMILLER, Warden, of Eastern State Penitentiary,

at Philadelphia, Pennsylvania.

Supreme Court of Pennsylvania.

July 8, 1960.

No attorneys for petitioner or respondent.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

The relator is confined in a State Penitentiary where he is serving a sentence of 7 1/2 to 15 years imposed in 1955 for his conviction of robbery. Alleging a want of due process in his criminal trial, he petitioned a Court of Common Pleas of Philadelphia County for a writ of habeas corpus. The petition was denied without a hearing.

The relator then petitioned the Superior Court for leave to appeal to that court from the summary dismissal of his habeas corpus petition without payment of the statutorily specified filing fee, alleging that he was indigent and unable to pay the fee. The Superior Court, in a per curiam order, denied his petition and, on ensuing petition to this court for leave to appeal from the order of the Superior Court without payment of the filing fee, we likewise refused the relator's petition in a per curiam order. Thereupon, the relator filed with us a supplemental petition for leave to appeal from the Superior Court's order without payment of the filing fee citing Burns v. State of Ohio, 1959, 360 U.S. 252 79 S.Ct. 1164, 1169, 3 L.Ed.2d 1209. In the light of that decision we transmitted to the Superior Court the relator's supplemental petition for that Court's possible reconsideration of its former order on the relator's petition for leave to appeal without payment of the filing fee. The Superior Court thereafter handed down an opinion in which it held that the decision in Burns v. State of Ohio was not presently controlling (see 192 Pa.Super. 134 136, 160 A.2d 126, 128), and an accompanying order reading as follows: 'Upon reconsideration, we again refuse the petition to permit filing of an appeal in this habeas corpus case without the payment of the filing fee.' As a consequence, the relator's supplemental petition for an allocatur to the order of the Superior Court refusing him leave to appeal without payment of the filing fee is back with us without any change by the Superior Court in its earlier denial of the relator's petition to that court for such leave.

In our...