Opinion
September 12, 1963.
December 12, 1963.
Criminal Law — Practice — Habeas corpus — Sufficiency of evidence — Dismissal of petition without hearing — Allegations refuted by record — Writ of error coram nobis.
1. A writ of habeas corpus may not be used to review the sufficiency of evidence.
2. A petition for a writ of habeas corpus is properly dismissed without a hearing where the allegations therein are refuted by the trial record.
3. In a proceeding upon a petition for a writ of error coram nobis, which was accepted and acted upon by the court below as a petition for a writ of habeas corpus, relator's contention that he had discovered new evidence not available at the trial in the form of an alibi, which would have affected the armed robbery bills and therefore his writ of error coram nobis should have been granted, was Held to be without merit, where it appeared that the evidence was available to relator at the time of trial had he exercised diligence to discover the same, and that he was represented by competent counsel at the trial, who would have presented the evidence had it existed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 215, Oct. T., 1963, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1963, No. 970, in case of Commonwealth ex rel. James Cunningham v. David N. Myers, Superintendent. Order affirmed.
Habeas corpus.
Order entered dismissing petition, opinion by CHUDOFF, J. Relator appealed.
James Cunningham, appellant, in propria persona.
Arthur J. Marion and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Submitted September 12, 1963.
This is an appeal from an order of the court below dismissing appellant's petition for a writ of habeas corpus, which had been filed as a writ of error coram nobis and which was accepted and acted upon by the court below as a writ of habeas corpus.
Defendant was tried and found guilty by a judge non-jury of aggravated robbery and possession of drugs. He was sentenced on the several bills, all to run consecutively, for sentence in the aggregate of a minimum of 17 years to a maximum of 35 years, which later was reduced to an aggregate sentence of not less than 12 years nor more than 25 years. His major argument is that the court should reduce and reconsider his sentence because he was convicted on faulty identification by the victims of the armed robbery.
A writ of habeas corpus may not be used to review the sufficiency of evidence: Com. ex rel. Jackson v. Day, 179 Pa. Super. 566, 118 A.2d 289; Com. ex rel. Watters v. Myers, 406 Pa. 117, 176 A.2d 448.
Appellant also avers that he discovered new evidence not available at the trial in the form of an alibi which would have affected the armed robbery bills and that therefore his writ of error coram nobis should have been granted. It is obvious from a reading of the record that this evidence was available to the appellant at the time of trial had he exercised diligence to discover the same. He was represented by competent counsel at the trial, who would have presented the evidence had it existed.
Appellant also complains of the action of the court below in dismissing his petition without a hearing. This was entirely proper because the court determined that the facts alleged were refuted by the record and had been found adverse to the appellant by the court sitting as a judge and jury. A petition for a writ of habeas corpus is properly dismissed without a hearing where the allegations therein are refuted by the trial record. See Com. ex rel. Watters v. Myers, supra; Com. ex rel. Willis v. Myers, 200 Pa. Super. 453, 190 A.2d 365.
Order affirmed.