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COMMONWEALTH EX REL. MONAGHAN v. BURKE (07/19/51)

July 19, 1951

COMMONWEALTH EX REL. MONAGHAN
v.
BURKE



COUNSEL

Francis Monaghan, pro se.

James W. Tracey, Jr., First Asst. District Atty., John H. Maurer, District Atty., Philadelphia, for appellee.

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

Author: Rhodes

[ 169 Pa. Super. Page 258]

RHODES, President Judge.

This is an appeal from an order of the Court of Quarter Sessions of Philadelphia County denying relator's petition for writ of habeas corpus. Relator was convicted in that court on March 21, 1946, on three bills of indictment to September Sessions, 1945, charging respectively attempted burglary (No. 772), carrying concealed deadly weapons on the person, and carrying firearms in a motor vehicle without a license (No. 773), and unlawful possession of burglar tools (No. 774).

On May 6, 1946, relator was sentenced to two years in the Eastern State Penitentiary on bill No. 772, two years in the same institution on bill No. 773, and from one and one-half to three years in such institution on bill No. 774. The sentences, which were consecutive, were not to begin until after relator had served the unexpired balance of a former sentence from which he had been paroled. In the present habeas corpus proceedings, relator being present, the lower court corrected the sentence on bill No. 772, the attempted burglary charge, to a sentence of not less than one year nor more than two years in the Eastern State Penitentiary; in other respects the petition for the writ was dismissed.

Since his conviction, relator has had his case before this Court and the Supreme Court on various types of proceedings. As we noted in Commonwealth v. Monaghan, 162 Pa. Super. 530,

[ 169 Pa. Super. Page 25958]

A.2d 486, the Supreme Court has indicated that it was of the opinion that relator had a fair trial and that there was evidence sufficient to go to the jury in support of the indictments. No further comment is required on the various points raised by relator in his present appeal questioning the sufficiency of the evidence. We might add, however, that the sufficiency of the evidence to sustain a verdict is not a matter for consideration on habeas corpus. Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593; Commonwealth ex rel. Burge v. Ashe, 168 Pa. Super. 271, 77 A.2d 725.

Under two other points raised, relator seeks to impeach the record. He contends that he was not tried on bill No. 774, charging unlawful possession of burglar tools. In support of this contention he claims that the caption upon the transcribed notes of testimony fails to indicate this charge although listing and identifying the other two indictments. Such an omission is entirely immaterial as the record clearly shows that he was indicted, tried, and convicted, and sentenced on such charge. He also contends that he was sentenced to the Philadelphia County Prison rather than to the Eastern State Penitentiary on bills Nos. 772 and 773. We have before us the original indictments upon the back of which the various sentences are endorsed and in each of the three cases the designated place of confinement is the Eastern State Penitentiary. Under such circumstances, the language of the Supreme Court in Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 444, 71 A.2d 799, 800, is applicable: 'In the present instance, we have not only a presumption of the regularity of the judgment of conviction but also direct proof that the factual basis of the alleged irregularity did not actually exist. There is nothing in the case to justify a departure from the stated record. Until the contrary affirmatively and competently appears, the relator is

[ 169 Pa. Super. Page 260]

    bound by the record: see Prine v. Commonwealth, 18 Pa. 103.' See, also, Commonwealth ex rel. Kaylor v. ...


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