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COMMONWEALTH EX REL. MCMORRIS v. CLAUDY (01/20/53)

SUPERIOR COURT OF PENNSYLVANIA


January 20, 1953

COMMONWEALTH EX REL. MCMORRIS
v.
CLAUDY, WARDEN, WESTERN STATE PENITENTIARY

COUNSEL

Cambridge McMorris, pro se.

John K. Best, Asst. Dist. Atty., and L. Alexander Sculco, Dist. Atty., Greensburg, for appellee.

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

[ 172 Pa. Super. Page 284]

PER CURIAM.

This is an appeal by relator from the dismissal of his petition for writ of habeas corpus by the Court of Common Pleas of Westmoreland County on July 8, 1952, at No. 212, August Term, 1952.*fn1 The present petition is merely an elaboration of petition for writ

[ 172 Pa. Super. Page 285]

    of habeas corpus filed by relator in the Supreme Court of Pennsylvania at No. 1631, Miscellaneous Docket, Western District, on January 5, 1950. The averments in relator's petition to the Supreme Court were to the effect that, after his arrest on March 13, 1948, he had been held in the Westmoreland County Jail for seven days, during which period he was not given a hearing and was denied the right to have counsel; that he was denied the right to be in court at the time the jury was selected for his trial; and that he was not taken before the court when the verdict of the jury was returned. The Supreme Court by its order of February 8, 1950, remitted the petition and answers to the Court of Quarter Sessions of Westmoreland County for hearing on the material averments of relator's petition. In accordance therewith a hearing was held at which relator was represented by counsel and testified. The testimony together with the findings of fact*fn2 of the

[ 172 Pa. Super. Page 286]

    hearing judge were submitted to the Supreme Court, which, on March 10, 1950, dismissed relator's petition. On May 29, 1950, the Supreme Court of the United States denied a petition for a writ of certiorari.

The matter having been adjudicated by the Supreme Court of Pennsylvania, the court below properly dismissed relator's petition and discharged the rule which

[ 172 Pa. Super. Page 287]

    had been granted. Com. ex rel. Banks v. Claudy, 370 Pa. 190, 88 A.2d 53; Com. ex rel. Campbell v. Claudy, 171 Pa. Super. 282, 89 A.2d 895. Under the circumstances, no hearing on the petition and answers was necessary. See Com. ex rel. Rogers v. Claudy, 170 Pa. Super. 639, 90 A.2d 382.

It further appears that relator had filed a similar petition for writ of habeas corpus in the Court of Common Pleas of Westmoreland County at No. 467, August Term, 1951.*fn3 On August 20, 1951, this petition was denied for the reason that the matters alleged had been adjudicated by the Supreme Court of this Commonwealth by its order of dismissal of relator's petition on March 10, 1950, at No. 1631, Miscellaneous Docket, Western District. There was no appeal from this action of the Court of Common Pleas of Westmoreland County. See Com. ex rel. Allen v. Claudy, 170 Pa. Super. 499, 87 A.2d 74.

Appeal is dismissed.

ARNOLD, J., absent.


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