Commonwealth ex rel. Sharpe v. Burke

• Decision Date: 29 December 1953
• Citation: 174 Pa.Super. 350,101 A.2d 397
• Parties: COMMONWEALTH ex rel. SHARPE v. BURKE.
• Court: Pennsylvania Superior Court

101 A.2d 397

174 Pa.Super. 350

COMMONWEALTH ex rel. SHARPE v. BURKE.

Superior Court of Pennsylvania.

December 29, 1953

Habeas corpus proceeding to obtain release from custody under sentence to state penitentiary. The Court of Common Pleas No. 4 of Philadelphia County, at No. 3760, December term 1951, Byron A. Milner, J., entered an order denying a writ of habeas corpus, and relator appealed. The Superior Court, No 197, October term, 1953, Rhodes, P. J., held that finding of hearing judge, supported by credible evidence, that jury which tried and convicted relator was impaneled and sworn in his presence was conclusive on appeal.

Order affirmed.

William J. Woolston, Philadelphia, for appellant.

Armand Della Porta, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, dist. Atty., Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, RENO, ROSS, GUNTHER, WRIGHT and WOODSIDE, JJ.

RHODES, President Judge.

On March 9, 1939, relator was tried and convicted in the Court of Oyer and Terminer of Philadelphia County on three bills of indictment (Nos. 576, 578, 580, December Sessions, 1938) charging robbery, burglary, and carrying concealed deadly weapons. The sentence on bill No. 576 (armed robbery) was for a term of imprisonment in the Eastern State Penitentiary of not less than ten years nor more than twenty years. At that time relator was on parole from a sentence of not less than one year nor more than twenty years to be served in the Philadelphia County Prison. The latter sentence had been imposed on June 27, 1933, by the same court, after trial and conviction, on a bill of indictment (No. 1335, May Sessions, 1933) charging armed robbery. The sentence on bill No. 576 was directed to be effective at the expiration of relator's sentence on bill No. 1335. Relator was not sentenced on bills Nos. 578 and 580.

On January 21, 1952, relator, being confined in the Eastern State Penitentiary, filed a petition for writ of habeas corpus in the Court of Common Pleas No. 4 of Philadelphia County. A rule to show cause was issued. On January 31, 1952, relator filed an amended petition. An answer was filed by the District Attorney of Philadelphia County. On April 4, 1952, the court dismissed the petition on the ground that it was premature as relator was still serving the remainder of the sentence imposed at No. 1335, May Sessions, 1933, whereas the petition related merely to the sentence imposed at No. 576, December Sessions, 1938.

On March 12, 1953, relator filed a second amended petition for a writ of habeas corpus. An answer was filed by the Warden of the Eastern State Penitentiary. On March 20, 1953, a hearing was held before Judge Milner at which relator was present and represented by counsel. Testimony was presented by relator and the Commonwealth.

In his second amended petition relator called to the attention of the court that he had been sentenced on March 9, 1939, to the Eastern State Penitentiary by the late President Judge Harry S. McDevitt on bill No. 576, and that it was provided in such sentence that it was not to be effective until the expiration of the sentence imposed at No. 1335, May Sessions, 1933. On the following day, March 10, 1939, Judge James G. Gordon, Jr., entered an order to the effect that relator, having violated his parole, be remanded to the Philadelphia County Prison there to serve the remainder of the sentence at No. 1335, may Sessions, 1933, and thereafter be remanded to the Eastern State Penitentiary to start and begin the sentence of not less than ten years nor more than twenty years imposed on March 9, 1939. This, relator asserted, violated the provision of the Act of June 22, 1931, P.L. 862, § 1, 61 P.S. § 305. Relator contended that the order of service having been provided by law could not be changed; and that therefore he was serving the sentence imposed on bill No. 576, the language and intention of the sentencing judge being immaterial. Judge Milner properly concluded there was merit in this contention, and granted a hearing on relator's second amended petition. However, after hearing, Judge Milner filed a comprehensive opinion wherein he states that except for the error in the designation of the manner of service of the sentence imposed on bill No. 576, there is no merit in relator's petition. An order was thereupon entered remanding relator and remitting the record to the Court of Oyer and Terminer of Philadelphia County for resentence. On May 8, 1953, the latter court corrected the sentence imposed on bill No. 576, making the effective date thereof ‘ to begin from November 23, 1938, the date of his commitment to the County Prison on the charge contained in the within indictment.’

In this appeal from the action of the Court of Common Pleas No. 4, denying a writ of habeas corpus, relator does not complain of the order of remand, nor does he complain of the subsequent correction of sentence. See Commonwealth ex rel. Graham v. Claudy, 171 Pa.Super. 562, 91 A.2d 389.His statement of questions involved relates to a few of the many matters raised in his petition and the amended petition.

Three of such questions pertain to alleged deficiencies in the charge of the trial judge. Relator contends that the trial judge failed (1) to define for the jurors the crimes specified in the indictment; (2) to charge the jury as to the doctrine of reasonable doubt; and (3) to charge the jury as to the presumption of innocence. These alleged errors, he asserts, constitute a lack of due process.

Both appellate courts of this Commonwealth have repeatedly and clearly stated the limitations of habeas corpus. It is not available to review the sufficiency of the evidence upon which a conviction is based, or for the correction of trial errors which could have been reviewed and corrected on appeal; it is not a substitute for an appeal or for a writ of error or for a motion for a new trial.^[1]Application of these principles renders any discussion of the three enumerated questions unnecessary. We have noted, however, the reference in the opinion of Judge Milner to the effect that relator was represented at his trial by an able lawyer with a long experience in the trial of criminal cases, that no exceptions were taken to the charge of the court, and that no request was made for further instructions. It is also pertinent to point out that the present relator did take an appeal to this Court from the very conviction and sentence he now attacks. In affirming the judgment, we said in Commonwealth v. Sharpe, 138 Pa.Super. 577, 578, 580, 10 A.2d 783, 784:‘ There was no motion for a new trial in the court below, and none of the assignments is based upon any exception. There was no specific or general exception to the charge of the court, which is the primary basis of complaint on this appeal. * * * The charge of the court contains no fundamental error. Counsel for appellant, however, complains that the charge was inadequate as to identification, as to reasonable doubt, and as to the defense of alibi. The probative weight of the testimony as to identity was exclusively for the jury, and was properly left to the jury by the trial judge. In the absence of a specific request the trial judge was not required to elucidate on the definition of reasonable doubt. Commonwealth v. Kelly, 134 Pa.Super. 241, 243, 4 A.2d 209.’

Obviously, relator did raise on his appeal...