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COMMONWEALTH EX REL. TANNER v. CLAUDY (06/28/54)

June 28, 1954

COMMONWEALTH EX REL. TANNER, APPELLANT,
v.
CLAUDY



Appeal, No. 134, March T., 1954, from order of Court of Common Pleas of Allegheny County, July T., 1952, No. 1916, in case of Commonwealth of Pennsylvania ex rel. Clarence E. Tanner v. John W. Claudy, Warden, Western State Penitentiary. Order affirmed. Habeas corpus. Before SMART, J. Order entered discharging rule. Relator appealed.

COUNSEL

Valera Grapp, with her Max V. Schoonmaker, for appellant.

Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

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

Author: Arnold

[ 378 Pa. Page 430]

OPINION BY MR. JUSTICE ARNOLD

Relator appeals from an order denying his petition for writ of habeas corpus. He has heretofore been denied an application filed on other grounds: Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A.2d 210. His present petition was based on allegations that he was not, and that the record did not affirmatively show that he was present when sentenced on May 23, 1946, to life imprisonment, upon conviction of murder in the first degree. In its answer the Commonwealth

[ 378 Pa. Page 431]

    admitted that the record had no entry showing he was present, but alleged that he was actually present, and that the omission to note his presence in the record was a clerical error.

At hearing the Commonwealth conclusively established, by testimony of relator's counsel in the murder trial and of the prosecutor in that trial, that he was actually present with his counsel when sentence was pronounced. This testimony was fortified by records of the county jail (where he was held until sentence) showing that on May 23, 1946, he was taken to the court house at 9:00 A.M., was returned at noon, and was sent to the penitentiary on the same day to serve his sentence.

Thus, the sole question is whether even though he was actually present, the absence of a notation to that effect in the record is sufficient grounds for issuance of the writ. We think not.

It is well recognized that the courts have the power to correct clerical errors in the record: Commonwealth v. Mount, 172 Pa. Superior Ct. 258, 262, 93 A.2d 887; Commonwealth v. Meyer, 169 Pa. Superior Ct. 40, 43, 82 A.2d 298; Commonwealth v. Rusic, 229 Pa. 587, 591, 79 A. 140.So that no practical or procedural difficulties are presented on this aspect of the matter. It is also true that "'it is the inherent right of the prisoner in a capital case to be present at every stage of the proceedings'" and "'neither court nor judge can take any step affecting his right in his absence'": Commonwealth v. Johnson, 348 Pa. 349, 352, 35 A.2d 312. Yet, in no case where the prisoner was present did this Court issue a writ or set aside the sentence merely because of a ...


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