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COMMONWEALTH EX REL. SCHUCH v. BURKE (11/11/53)

November 11, 1953

COMMONWEALTH EX REL. SCHUCH
v.
BURKE



COUNSEL

Otto Schuch, pro. per.

Raymond R. Start, Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty., Ernest L. Green, Jr., Asst. Dist. Atty., Media, for appellee.

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

Author: Hirt

[ 174 Pa. Super. Page 139]

HIRT, Judge.

Relator was convicted of burglary in the quarter sessions of Delaware County and is now serving a sentence of from 10 to 20 years in the Eastern Penitentiary. He was well represented at the trial by competent counsel of his own choice, but was convicted on competent testimony which can leave no doubt of his guilt. In this proceeding he petitioned for his discharge on habeas corpus alleging a denial of constitutional rights on a number of grounds; he does not assert his innocence. This is an appeal from the order of the lower court dismissing relator's petition without hearing. A brief reference to the grounds advanced by relator will demonstrate that the petition, in the light of the record of his trial and conviction, does not make out a case for relief. The order will be affirmed.

Relator with an accomplice broke into a building in Clifton Heights Borough, Delaware County, during the early morning of January 25, 1950; a safe containing $1,600 and other property was removed from the building and was conveyed by them in relator's automobile to Philadelphia. Defendant was arrested there on the evening of the same day and within an hour a search was made of his car by the arresting officers. Two pinch bars or 'jimmies' and a third 'sectional

[ 174 Pa. Super. Page 140]

    jimmy' together with a flashlight, a chisel and part of the lock which had been removed from the safe were taken from the car.

There is no merit in relator's complaint that he was arrested and the car searched without a warrant. The record does not disclose whether the Philadelphia police had a warrant but no warrant was necessary. A police officer and even a private citizen may arrest for felony without a warrant. Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 445, 71 A.2d 799. And the arresting officers, after making the arrest, rightfully searched relator's car, which had been used by him to carry away the fruits of the burglary. They took from it the articles, 'facilities of the crime' which properly were received in evidence on the trial of relator for burglary. However, even if relator had been improperly arrested and his car searched by an officer without justification, his complaints on that score would not be reviewable on an application for a writ of habeas corpus. Commonwealth ex rel. Spencer v. Ashe, supra.

Relator alleges that testimony from an incompetent witness was improperly admitted over his objection at the trial. We have examined the questioned testimony and there is no merit in the charge. But even if relator's guilt was established in part by incompetent testimony, improperly admitted, habeas corpus cannot be used as a substitute for an appeal from a conviction on that ground. Com. ex. rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593; Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A.2d 122.

He complains that the Assistant District Attorney held a personal conversation with the prosecuting witness during the trial. The witness was describing the discolored condition of the frame of the cellar ...


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