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COMMONWEALTH EX REL. GARRISON v. BURKE (06/28/54)

June 28, 1954

COMMONWEALTH EX REL. GARRISON, APPELLANT,
v.
BURKE



Appeal, No. 187, Jan. T., 1954, from order of Superior Court, Oct. T., 1953, No. 248, affirming order of Court of Common Pleas of Bucks County, May T., 1953, No. 22, in case of Commonwealth of Pennsylvania ex rel. Milton Garrison v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Order affirmed. Same case in Superior Court: 174 Pa. Super. Ct. 331. Habeas corpus. Order entered discharging rule and refusing writ, opinion by SATTERTHWAITE, J. Relator appealed to the Superior Court, which affirmed the order of the court below. Appeal by relator to Supreme Court allowed.

COUNSEL

Milton Garrison, appellant, in propria persona.

Donald W. Van Artsdalen, District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 378 Pa. Page 346]

OPINION BY MR. JUSTICE BELL

A petition for a writ of habeas corpus was presented alleging, inter alia, that the Commonwealth's evidence was circumstantial and failed to prove a felonious intent; that the defendant was illegally arrested; and that his Court-appointed counsel did not adequately and properly protect him.

Relator was indicted, and on January 28, 1953, was convicted of burglary. No motion for a new trial or motion in arrest of judgment was filed. Relator was thereupon sentenced to serve a term of 2 to 4 years in the Eastern State Penitentiary. No appeal was taken from the judgment or sentence of the Court. On May 13, 1953, relator filed the present petition for a writ of habeas corpus which, after hearing, was dismissed by the Court. Relator then took an appeal to the Superior Court which unanimously affirmed the judgment and sentence of the lower Court. An allocatur was allowed by a member of this Court.

In Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593, we said: "The extraordinary remedy of habeas corpus which can be successfully invoked only in exceptional cases, is not a substitute for a motion for new trial or for an appeal or for a writ of error: [Citing numerous cases]; and we strongly deprecate the present practice to use it as such.

"It is well settled that a relator cannot obtain relief by habeas corpus for errors alleged to have occurred in the course of his trial: [Citing numerous cases].

"... the great weight of authority holds that the question of the sufficiency or insufficiency of the evidence to sustain a conviction cannot be raised by habeas corpus: [Citing cases and text authorities]."

In spite of the fact that decisions of the Supreme Court of the United States were in complete accord

[ 378 Pa. Page 347]

    with and fully sustained the principles asserted in Commonwealth ex rel. Marelia v. Burke, 366 Pa., supra, nevertheless, as Mr. Justice JACKSON said in his concurring opinion in Brown v. Allen, Warden, 344 U.S. 443, 540 (decided February 9, 1953): "Once upon a time the writ could not be substituted for appeal or other reviewing process but challenged only the legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner's habeas corpus are substantially the same as would be considered on appeal."

We took cognizance of this trend when we said in Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 493, 96 A.2d 122: "The cases are legion in which this Court has said that a writ of habeas corpus is not a substitute for an appeal or for a writ of error or for a motion for a new trial or for the correction of trial errors: Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A.2d 593; Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 71 A.2d 107; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. On the other hand, the recent tendency of Courts, especially the Supreme Court of the United States, has been to relax this general rule and to widen the scope of due process and allow a writ of habeas corpus when the interests of justice imperatively require it. See particularly Townsend v. Burke, Warden, 334 U.S. 736 and the recent United States Supreme Court cases of U.S. ex rel. Smith v. Baldi, 344 U.S. 561; Brown v. Allen, Warden, 344 U.S. 443; Speller v. Allen, Warden, 344 U.S. 443; and Daniels v. Allen, Warden, 344 U.S. 443."

Assuming, without deciding, that the matters raised by this relator can be raised on a petition for a writ of

[ 378 Pa. Page 348]

    habeas corpus, there is no merit to the petition. The Commonwealth's evidence at the trial clearly proved that a man, in the early morning hours of December 20, 1952, broke a window in a second floor bedroom and entered the room occupied by Frank Marks, aged 13, a son of Mr. and Mrs. Marks. Mrs. Marks was awakened by the noise, opened the bedroom door and faced and started at the intruder who was 10 to 15 feet away. She yelled to her husband; the intruder then slammed the door shut, dove head first through the window which he had previously broken and opened; ran across a small shed roof and jumped from the roof to the ground.

Friends and neighbors conducted a search and approximately two hours later the relator was apprehended on a bridge that crosses the Neshaminy Creek a few hundred feet from the Marks home. Relator's clothes were wet and he was limping. He was taken to the Marks home where Mrs. Marks positively identified him as the intruder. Relator did not live in the neighborhood, but testified that while the search was being conducted he was (innocently) sitting on some steps almost directly across the street from the Marks home.

Relator contends that no felonious intent was shown and therefore he is entitled to be discharged. There is no merit in this contention. Two hours after the burglary, and at the trial, Mrs. Marks positively and repeatedly identified the intruder whom she saw in the hall as the (defendant or) relator. Intent may be inferred from actions as well as words: Commonwealth v. Ellis, 349 Pa. 402, 404, 37 A.2d 504. It is clearly settled that a man may be convicted on circumstantial evidence alone, and ...


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