Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 401]
Relator, Anthoney Baerchus, was convicted of burglary and larceny in the Court of Oyer and Terminer of Lackawanna County and sentenced December 8, 1947, to three consecutive terms of five to ten years in the Eastern State Penitentiary on the burglary charges. Sentence was deferred on the charges of larceny. On January 27, 1950, having filed a petition for a writ of habeas corpus, he was granted a hearing in the Court of Common Pleas of Montgomery County before Corson, J. He testified that police officers had beaten him after his arrest and so coerced his confession to the crimes of which he was convicted. The District Attorney called to the witness stand another inmate of the penitentiary, who testified that he had made an affidavit to the effect that he had been confined
[ 172 Pa. Super. Page 402]
in jail with Baerchus at the time of the alleged beatings and that he had seen blood and wounds upon Baerchus. He then repudiated this affidavit, whereupon the court discharged the writ. No appeal was taken.
On May 1, 1951, Baerchus filed a second petition for a writ of habeas corpus which was argued, again before Judge Corson, on November 30, 1951. This writ was also discharged and relator took this appeal.
The Supreme Court of the United States summarized the effect of prior adjudications upon application for the writ of habeas corpus in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. Mr. Justice Murphy, speaking for the Court, referred to the case of Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, relied upon by the Circuit Court of Appeals, 9 Cir., 161 F.2d 705, and said, 334 U.S. at page 289, 68 S.Ct. at page 1062: 'It was there held that, while habeas corpus proceedings are free from the res judicata principle, a prior refusal to discharge the prisoner is not without bearing or weight when a later habeas corpus application raising the same issues is considered.'
Appellant contends that he presents grounds in this petition which were not considered by the court in the prior application. He abandons the allegation that he was beaten and 'relies solely upon the uncontroverted fact that he was held by the police eighty-five and one-half hours before being given a preliminary hearing before a magistrate. * * * This ground for release was not considered by the court in the first application for the writ.' He contends that he is not merely bringing a second petition for the writ. But at the first hearing he attempted to prove that his conviction was coerced by physical beatings, whereas in the present proceeding he places 'his sole reliance upon the psychological and mental coercion implicit in such a period
[ 172 Pa. Super. Page 403]
of detention.' That is a distinction without a difference. His principal complaint is that he was convicted upon a confession obtained by coercion, and that complaint was fully considered and passed upon by the court below in the prior proceeding.
In his first petition relator alleged the following: 'Petitioner was not released, but held incommunicado for a period of four days and three nights * * * to force the petitioner to confess to crimes he did not commit * * *, and to obtain a signed confession against his free will.' The facts of the uncontroverted detention, as well as the questioned beating, were before the court. In the opinion filed with his present order the learned judge of the court below stated: 'The question raised as to due process under the Federal Constitution was raised at the hearing on the first writ, was passed upon by this court, and no exceptions or appeal were taken to that ruling.' This Court has held repeatedly that a petition for a writ of habeas corpus which is repetitious of previous petitions, or which contains the same averments as the last petition, should be dismissed. Commonwealth ex rel. Campbell v. Claudy, 171 Pa. Super. 282, 89 A.2d 895 (allocatur refused 171 Pa. Super xxiv), certiorari denied by the Supreme Court of the United States, 344 U.S. 869, 73 S.Ct. 113; Commonwealth ex rel. Gibbs v. Claudy, 170 Pa. Super. 205, 85 A.2d 621; Commonwealth ex rel. Lewis v. Ashe, 142 Pa. Super. 357, 16 A.2d 433.
A careful consideration of the very able brief filed by petitioner's counsel fails to convince us that his constitutional rights have been abridged. Use of a coerced confession against a defendant in a criminal trial is a deprivation of due process of law. Commonwealth ex rel. Master v. Baldi, 166 Pa. Super. 413, 72 A.2d 150, allocatur refused, 166 Pa. Super, xxiv, ...