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

January 20, 1953

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



COUNSEL

Thomas Smilley, pro se.

Albert A. Fiok, Asst. Dist. Atty. and James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.

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

Author: Rhodes

[ 172 Pa. Super. Page 248]

RHODES, President Judge.

Relator petitioned the Court of Common Pleas of Allegheny County for a writ of habeas corpus. Answers were filed by the District Attorney of Allegheny County and the Warden of the Western State Penitentiary. Relator was present with counsel at the hearing on his petition on May 12, 1952, and testified. Finding that no material averment had been established, the hearing judge, President Judge Graff of the 33d Judicial District, specially presiding, denied the petition. From that order relator has appealed.

Relator was indicted in the Court of Oyer and Terminer of Allegheny County for armed robbery and violation of the Firearms Act, 18 P.S. ยง 4628. Counsel was appointed to defend him. He pleaded not guilty to the bills of indictment, and on May 12, 1937, he was convicted by a jury on eight bills each charging armed robbery and a like number charging violations of the Firearms Act. On the same day he was sentenced to the Western State Penitentiary on three of the bills charging armed robbery -- Nos. 21, 22, and 29, May Term,

[ 172 Pa. Super. Page 2491937]

. The sentences, which were consecutive, were for terms of not less than five years nor more than ten years. Sentence was suspended on the other convictions.

The averments in relator's 75-page petition may be summarized as follows: (1) That he was not present in court when the jury was selected for trial; (2) that he was inadequately and improperly represented by counsel at his trial, and thereby denied due process; and (3) that he was denied the right to subpoena witnesses for his defense.

Relator's first contention is contrary to the records of the trial court. The minute book of the Court of Oyer and Terminer of Allegheny County contains the following entry with reference to relator's trial: 'And now May 12, 1937, defendant present in open court pleads non cul et de hoc. District Attorney similiter. Issue joined. Eodie a jury being called there came * * * [names of jurors] * * * twelve good and lawful men and women duly summoned * * * impaneled and sworn * * *.' As the Supreme Court noted in Com. ex rel. Spencer v. Ashe, 364 Pa. 442, 444, 71 A.2d 799, 800, this supplies 'direct proof that the factual basis of the alleged irregularity did not actually exist.' In any event, the records of the trial court may not be impeached in a collateral proceeding. Com. ex rel. Kaylor v. Ashe, 167 Pa. Super. 263, 267, 74 A.2d 769; Com. ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 90 A.2d 383. Furthermore, the hearing judge in passing on the credibility of relator said: 'As to being present at the time of the selection of the jury, we are satisfied that he is not telling the truth when he says that he wasn't.' See Com. ex rel. Uhler v. Burke, 172 Pa. Super. 108, 115, 91 A.2d 913.

Although relator had counsel appointed by the trial court, he endeavors to argue that ...


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