Benjamin Goldman, Philadelphia, for appellant.
Malcolm Berkowitz, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 26]
Relator filed a petition for writ of habeas corpus in the Court of Common Pleas No. 1, Philadelphia
[ 172 Pa. Super. Page 27]
County. After hearing on the petition and answer, the petition was dismissed and the writ was denied. From this order relator has appealed.
Relator was tried and convicted, in the Court of Quarter Sessions of Philadelphia County, of the unlawful possession and sale of narcotics. He was sentenced to pay a fine of $250 and undergo imprisonment in the Eastern State Penitentiary for a term of not less than two and one-half years nor more than five years. No appeal was taken.
Relator's petition for writ of habeas corpus averred that the evidence was insufficient to sustain a conviction. This Court and the Supreme Court have held that it is the general rule that the question of the insufficiency of the evidence to sustain a conviction cannot be raised on habeas corpus. Com. ex rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593; Com. ex rel. Burge v. Ashe, 168 Pa. Super. 271, 77 A.2d 725. We find nothing in the present appeal which would warrant a deviation from that rule. Relator, represented by counsel, was tried before Judge Alessandroni and a jury. Relator did not take the stand. The case was submitted to the jury in a comprehensive charge by the trial judge. The present proceeding is merely an attempted substitute for an appeal.
Order of the court below is affirmed.