Commonwealth ex rel. Holly v. Claudy

• Decision Date: 17 July 1952
• Parties: COMMONWEALTH ex rel. HOLLY v. CLAUDY, Warden Western State Penitentiary.
• Court: Pennsylvania Superior Court

90 A.2d 253

171 Pa.Super. 340

COMMONWEALTH ex rel. HOLLY v. CLAUDY, Warden Western State Penitentiary.

Superior Court of Pennsylvania

July 17, 1952

Argued April 15, 1952.

Application for Allocatur Denied October 1, 1952

Appeal No. 28, April T., 1952, from order of Court of Common Pleas of Fayette County, refusing habeas corpus petition, Sept Sessions, 1946, Docket No. 1212, in case of Commonwealth of Pennsylvania ex rel. John J. Holly v. Dr. John W. Claudy Warden, Western State Penitentiary.

Habeas corpus proceeding.

Order entered dismissing petition and denying writ, opinion by Carr, P.J. Relator appealed.

John J. Holly, appellant, in propria persona, submitted a brief.

John I. Munson, Assistant District Attorney, with him Fred L. Brothers, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

OPINION

PER CURIAM

The order will be affirmed on the following excerpts from the opinion of the learned President Judge of the court below:

"The petition for writ of habeas corpus filed in this court at the above stated number came to the Prothonotary from Holly by mail. It refers to his convictions and sentences in the cases at No. 21/152 September Term and at No. 25/156 September Term, 1946, in our Court of Oyer and Terminer. Holly has failed to secure a favorable final ruling as to these cases on either of two habeas corpus petitions heretofore filed by him, the one in the United States District Court at Pittsburgh, and the other in our State courts, the latter having reached the Supreme Court and been decided by it. See Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, . . . .

"It does not seem reasonable that a defendant in the Penitentiary under sentence can assert additional reasons for a third writ, reasons which, if they are true, existed when the former petitions were presented and acted upon. However, an examination of the petition filed and the court records therein does not, in our opinion, show cause for issuance of the writ. Most of the averments in the petition are to the effect that the two convictions mentioned therein are not supported by the evidence. 'Habeas corpus cannot properly be made a substitute for an appeal' Commonwealth ex rel. Greevy v. Reifsteck, 271 Pa. 441, . The only recitals that seem to give semblance of foundation for the issuance of the writ pertain to the petitioner's alleged absence in jail when the verdict was returned in the case at No. 25/156 . . . Not conceding this to be a fact, and understanding it not to be, but for the present assuming such to be true [no answer was filed to the petition], it does not follow, when considered in connection with the undisputed facts, that the writ should issue, or even that a rule should be granted to show cause why the writ should not issue. The petition recites a conviction . . . at No. 21/152 . . ., but the petitioner does not aver that he was not in court when this verdict was returned. In addition the file papers show that this verdict was returned in open court December 12, 1946, at 3:35 P.M. The trial of the second case at No. 25/156 was in progress at this time in the same court with the defendant, the petitioner herein, and his attorney both present...