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COMMONWEALTH EX REL. WAGNER v. TEES (12/29/53)

: December 29, 1953.

COMMONWEALTH EX REL. WAGNER
v.
TEES



COUNSEL

Bernard Wagner, pro se.

Raymond R. Start, Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty., J. Harold Hughes, Asst. Dist. Atty., Media, for appellee.

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

Author: Rhodes

[ 174 Pa. Super. Page 477]

RHODES, President Judge.

Relator presented a petition for writ of habeas corpus to the Court of Common Pleas of Delaware County on July 16, 1953. No answer was filed and no hearing was held. On July 17, 1953, the court dismissed the petition. From that order relator has appealed to this Court.

Relator had been tried and convicted on September 30, 1952, in the Court of Quarter Sessions of Delaware County on two bills of indictment, Nos. 236, 237, September Sessions, 1952. Each bill contained two counts, one charging simple assault and battery, and the other aggravated assault and battery. He was sentenced on each bill to the Eastern State Penitentiary. The sentences, which were consecutive, were for terms of not less than one and one-half years nor more than three years.

In his petition for a writ of habeas corpus relator averred: (1) That he was forced by the district attorney and the court to go on trial without benefit of counsel; (2) that the record of the trial disclosed the existence of a conspiracy against him on the part of the prosecutrix and a police officer; (3) that he was denied an opportunity to secure witnesses for his defense; (4) that the sentence on bill No. 236 exceeded the statutory maximum.

The court below was entirely justified in disposing of the last three contentions in the petition without a hearing as they were completely refuted by the trial record. Such record discloses no evidence whatsoever of any conspiracy against relator; and after reading the record we view relator's allegation as to an alleged conspiracy as meaningless. As the court below points out in its opinion, relator's complaint of the trial court's refusal to continue the trial that relator might secure witnesses is also without merit; no such request

[ 174 Pa. Super. Page 478]

    was made by relator until after the jury was impaneled and the trial virtually concluded. Moreover, relator's request did not state what witnesses he desired or what would be the nature of their testimony. The second count in both bills of indictment upon which relator was tried charged relator with having committed aggravated assault and battery, and the jury returned a general verdict of guilty on both bills after a comprehensive charge by the trial judge. The sentences were therefore entirely proper. Act of June 24, 1939, P.L. 872, § 709, 18 P.S. § 4709. Although the trial records are not introduced in a habeas corpus proceeding, they may relevantly be considered in such proceeding. Commonwealth ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 90 A.2d 383; Commonwealth ex rel. Dote v. Burke, 173 Pa. Super. 192, 96 A.2d 151; Commonwealth ex rel. Wolcott v. Burke, 173 Pa. Super. 473, 98 A.2d 206.

Relator's averment that he was forced by the district attorney and the court to go to trial without counsel differs from the other allegations of the petition, which are insufficient for the issuance of a writ. We think this uncontroverted averment raises a factual question which must be resolved upon a hearing and by findings of fact. The trial record merely discloses that relator acted as his own counsel and contains nothing that would establish or disprove the alleged fact. But, despite the improbability of the verity of such allegation, relator should be given the opportunity to present evidence, if any he has, in substantiation thereof. Commonwealth ex rel. Dote v. Burke, supra, 173 Pa. Super. 192, 96 A.2d 151; Commonwealth ex rel. Butler v. Claudy, 171 ...


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