From Casetext: Smarter Legal Research

Com. ex rel. Yeschenko v. Keenan

Superior Court of Pennsylvania
Jul 21, 1955
179 Pa. Super. 145 (Pa. Super. Ct. 1955)

Summary

In Commonwealth ex rel. Yeschenko v. Keenan, 179 Pa. Super. 145, 115 A.2d 386 (1955), the Superior Court affirmed the dismissal of the defendant's writs of error coram vobis and habeas corpus.

Summary of this case from Com. v. Baker

Opinion

April 13, 1955.

July 21, 1955.

Criminal law — Practice — Writ of error coram nobis — Errors of fact or law — Legality of sentences — Consideration as petition for writ of habeas corpus.

1. A writ of error coram nobis functions only to bring before the court which rendered the judgment such matters of fact which were unknown at the time of judgment was rendered but which, had they been known, would have prevented rendition of the judgment.

2. A writ of error coram nobis is designed to correct errors of fact only and cannot be used to correct errors of law.

3. It was Held that (1) contentions that petitioner's sentences were illegal because (a) his court-appointed counsel did not properly represent him, (b) his prior criminal record was not properly introduced in evidence, (c) two of the charges should have been merged, and that (d) the evidence was insufficient to sustain the convictions, were not properly raised in a petition for a writ of error coram nobis; and (2) it was not error for the court below to consider the petition as one for a writ of habeas corpus.

Criminal law — Practice — Habeas corpus — Substitute for appeal — Sufficiency of evidence — Testimony concerning prior criminal record — Presumption of regularity of proceedings — Plea of guilty — Presumption of defendant's knowledge.

4. A habeas corpus proceeding is not a substitute for an appeal.

5. The sufficiency of the evidence to sustain a conviction cannot be raised in a habeas corpus proceeding.

6. A contention that the court erred in receiving testimony concerning defendant's prior criminal record is a matter which can be attacked only on appeal, not in a habeas corpus proceeding.

7. The presumption is that the proceedings at the trial in a criminal prosecution were regular.

8. The presumption is that a defendant was aware of the charges to which he pleaded guilty.

Criminal law — Practice — Plea of guilty — Absence of trial — Sufficiency of evidence — Sentence — Evidence of prior criminal record.

9. Where a defendant voluntarily pleads guilty, there is no trial, and the sufficiency of the evidence to sustain the conviction is not an issue.

10. Where a defendant pleads guilty, evidence concerning his prior criminal record may be received by the court in aid of exercising its discretion in passing sentence.

Criminal law — Merger of crimes — Assault with intent to commit robbery — Aggravated assault and battery.

11. In order for a merger of two crimes to occur, it is necessary that the one crime involve the other.

12. A contention that charges of assault with intent to commit robbery and aggravated assault and battery should have merged was Held, in the circumstances, to be without merit.

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

Appeal, No. 21, April T., 1955, from order of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 359, in case of Commonwealth of Pennsylvania ex rel. George Yeschenko v. Lawrence P. Keenan, Superintendent, Allegheny County Workhouse. Order affirmed.

Proceeding upon petition of relator for writ of coram nobis.

Order entered dismissing petition, opinion by WEISS, J. Relator appealed.

George Yeschenko, appellant, in propria persona.

James F. Malone, Jr., District Attorney, and Albert A. Fiok, Assistant District Attorney, for appellee.


Submitted April 13, 1955.


George Yeschenko appeals from the dismissal of his petition for a writ of error coram nobis, treated by the court below as a petition for a writ of habeas corpus. Appellant, on February 7, 1952, pleaded guilty to assault with intent to commit robbery, aggravated assault and battery, and to pointing firearms. He was sentenced to imprisonment for a period of from five to ten years on the assault with intent to commit robbery charge, and for a term of from one to two years on each of the other two charges, the latter sentences to run concurrently with the five to ten year sentence. Apparently no appeal was taken. It appears, therefore, that he has served the one to two year sentences and has, as a practical matter, nothing to gain by his attack upon them.

Appellant raises essentially two questions: (1) Is the writ of error coram nobis the proper remedy to attack a sentence upon a plea of guilty and was it thus error for the court below to consider the petition as one for a writ of habeas corpus, and (2) Did the evidence sustain his conviction of assault with intent to commit robbery despite the fact that he pleaded guilty? He raised numerous other questions in the court below.

A writ of error coram nobis functions only to bring before the court which rendered the judgment such matters of fact which were unknown at the time judgment was rendered but which, had they been known, would have prevented rendition of the judgment. It is designed to correct errors of fact only and cannot be used to correct errors of law. Com. v. Harris, 351 Pa. 325, 328, 41 A.2d 688; Com. v. Connelly, 172 Pa. Super. 363, 365, 94 A.2d 68. Clearly the writ is not proper here. Appellant in his petition raised only a number of legal questions. He brought before the court no previously unknown facts whatever. His petition asserted that the sentences were illegal because: his court-appointed counsel did not properly represent him; his prior criminal record was not properly introduced in evidence; two of the charges should have merged; and the evidence was insufficient to sustain the convictions. These are not properly raised in a writ of error coram nobis. These assertions, though often improperly so, are usually found in a petition for habeas corpus and it was not error for the court below to consider the petition as such in the instant case.

The reasons asserted in the petition for the illegality of the confinement are matters which should properly have been raised on an appeal from the conviction. We have repeatedly held that a habeas corpus proceeding is not a substitute for an appeal. Com. ex rel. Fox v. Tees, 175 Pa. Super. 453, 106 A.2d 878.

However, in the hope that by discussing the merits we shall forestall future petitions by the same petitioner raising the same questions, we shall dispose of his various contentions. Appellant was ably represented by a reputable and experienced member of the Bar who was court-appointed to advise and defend him. Even without counsel appellant was of the age and experience to realize the gravity of the charges to which he pleaded guilty. It was thus necessary for him to produce proof that some element of unfairness or prejudice surrounded his plea, his bald assertions and conclusions carrying no weight whatever. The law presumes that the proceedings at his trial were regular. Com. ex rel. Popovich v. Claudy, 170 Pa. Super. 482, 485, 87 A.2d 489. It is also presumed that he was aware of the charges to which he pleaded guilty. Com. ex rel. Jenkins v. Ashe, 341 Pa. 334, 336, 19 A.2d 472.

Appellant's contention that the charges of assault with intent to commit robbery and aggravated assault and battery should have merged as being two charges growing out of the same assault is amply answered by his own recital of the facts, which shows that they are two separate and distinct assaults, not the same one. In order for a merger to occur it was necessary that the one crime involve the other. Com. ex rel. Sawchak v. Ashe, 169 Pa. Super. 529, 536, 83 A.2d 497; Com. ex rel. Kitzinger v. Claudy, 173 Pa. Super. 453, 457 98 A.2d 457. Here appellant has not only failed to show that they are one and the same assault but he has indicated their distinction.

So too, appellant's contention regarding the sufficiency of the evidence was properly dismissed. Appellant ignores the fact that he voluntarily pleaded guilty to the charges and, therefore, no trial was held, as well as the established rule that the sufficiency of the evidence to sustain a conviction cannot be raised in a habeas corpus proceeding. Com. ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A.2d 593; Com ex rel. Fox v. Tees, supra, 175 Pa. Super. 453, 455, 106 A.2d 878.

Appellant's final contention — that the court erred in receiving testimony concerning his prior criminal record — is likewise of no avail. It is a matter which could be attacked only on appeal, if it were error at all. Com. ex rel. Johnson v. Burke, 173 Pa. Super. 105, 108, 93 A.2d 876. Furthermore, since appellant pleaded guilty it appears to have been received by the court in aid of exercising its discretion in passing sentence. Com. v. Petrillo, 340 Pa. 33, 47, 16 A.2d 50.

We conclude, therefore, that appellant has failed to sustain his burden of showing an adequate legal basis for the granting of either the writ of error coram nobis or the writ of habeas corpus, and his petition was, therefore, properly dismissed.

Order affirmed.


Summaries of

Com. ex rel. Yeschenko v. Keenan

Superior Court of Pennsylvania
Jul 21, 1955
179 Pa. Super. 145 (Pa. Super. Ct. 1955)

In Commonwealth ex rel. Yeschenko v. Keenan, 179 Pa. Super. 145, 115 A.2d 386 (1955), the Superior Court affirmed the dismissal of the defendant's writs of error coram vobis and habeas corpus.

Summary of this case from Com. v. Baker
Case details for

Com. ex rel. Yeschenko v. Keenan

Case Details

Full title:Commonwealth ex rel. Yeschenko, Appellant, v. Keenan

Court:Superior Court of Pennsylvania

Date published: Jul 21, 1955

Citations

179 Pa. Super. 145 (Pa. Super. Ct. 1955)
115 A.2d 386

Citing Cases

Com. v. Baker

Petrillo's principle was applied in the same manner in Commonwealth v. Johnson, 348 Pa. 349, 354, 35 A.2d…

Com. ex rel. Gouch v. Myers

Appellant's contention that the court erred in receiving testimony concerning his prior criminal record is…