Commonwealth ex rel. Sell v. Tees

• Decision Date: 13 July 1954
• Citation: 107 A.2d 205,176 Pa.Super. 57
• Parties: COMMONWEALTH ex rel. SELL v. TEES, Acting Warden.
• Court: Pennsylvania Superior Court

107 A.2d 205

176 Pa.Super. 57

COMMONWEALTH ex rel. SELL v. TEES, Acting Warden.

Superior Court of Pennsylvania.

July 13, 1954

Habeas corpus proceeding. The Court of Common Pleas of Lancaster County, Habeas Corpus Docket No. 3, Page 136, Oliver S Schaeffer, P. J., dismissed petition and relator appealed. The Superior Court, No. 57, October Term, 1954, Ervin, J held that allegations in relator's petition relating principally to alleged errors in criminal trial were matters which did not come within purview of habeas corpus proceeding.

Order affirmed.

Russell Sell, pro. per.

William C. Storb, Dist. Atty., Alfred C. Alspach, Asst. Dist. Atty., Lancaster, for appellee.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ.

ERVIN Judge.

The relator was found guilty of burglary and larceny by a jury and sentenced on two indictments to the Eastern State Penitentiary, where he is now confined, for a period of not less than ten nor more than twenty years. He was tried on June 11, 1952 when the court declared a mistrial. At that time he was represented by counsel retained by him, who later withdrew from the case. At the second trial on September 9, 1952 he was represented by other counsel retained by him, who has also withdrawn from the case. No application was made for a new trial although the relator was represented by counsel. This is an appeal from the order of the Court of Common Pleas of Lancaster County discharging a rule for a writ of habeas corpus, after hearing, at which the relator appeared in person and presented and argued his case.

Three alleged trial errors are presented in relator's brief, none of which may be raised in this type of proceeding. In Goto v. Lane, 265 U.S. 393, 401, 44 S.Ct. 525, 527, 68 L.Ed. 1070, the Supreme Court, in an opinion by Justice Van Devanter, said: ‘ The remedy is an extraordinary one, out of the usual course, and involves a collateral attack on the process or judgment constituting the basis of the detention. The instances in which it is granted, when the law had provided another remedy in regular course, are exceptional and usually confined to situations where there is peculiar and pressing need for it or where the process or judgment under which the prisoner is held is wholly void. This case does not measure up to that test.’ It has been said many times by our appellate courts that an application for a writ of habeas corpus is not a substitute for an appeal or a writ of error.^[1]

Relator in one indictment was charged with a series of burglaries and larcenies occurring on three separate nights, under similar circumstances, in the same locality in Lancaster County during a period of five days. Similar offense were charged in the other indictment. No request for severance was made by his counsel at either trial. The lower court decided that relator was properly and fairly tried and that his rights were not prejudiced or injured by his trial on both indictments. This was clearly without error. Com. ex rel. Haines v. Burke, 173 Pa.Super. 477, 98 A.2d 208.

The relator also avers that he was not present in court when the court declared a mistrial and dismissed the jury on June 11, 1952. The uncontradicted testimony shows that the relator was present at all times. In any event, he does not claim that he was not in court at all stages of the second trial. The lower court was clearly right in holding this petition to be without merit. Com. ex rel. Sell v. Burke, 174 Pa.Super. 344, 101 A.2d 174, (a brother of this relator). These two men were jointly indicted and tried together.

As to the third point raised by relator, we repeat what was said by President Judge...