Appeal, No. 26, April T., 1955, from order of Court of Common Pleas of Washington County, May T., 1952, No. 242, in case of Commonwealth of Pennsylvania ex rel. Willard E. Comer, Sr., v. Captain James F. Maroney, Acting Warden, Western State Penitentiary. Order affirmed.
Willard Comer, Sr., appellant, in propria persona.
Wray G. Zelt, District Attorney, with him John F. Roney, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 178 Pa. Super. Page 634]
This is an appeal from an order of the Court of Common Pleas of Washington County dismissing a petition for a writ of habeas corpus without a hearing.
Willard E. Comer, Sr., the relator, his son, Willard E. Comer, Jr., and John Hiestand, were indicted for burglary, larceny, violation of the Uniform Firearms Act, and possession of burglary tools. Comer, Jr. entered a plea of guilty; Comer, Sr., the relator, and Hiestand were found guilty after a trial by jury. Relator
[ 178 Pa. Super. Page 635]
was sentenced to pay fines totaling $503.00, costs of prosecution and to undergo imprisonment in the Western State Penitentiary for a period of not less than 9 1/2 nor more than 19 years. On appeal by relator to this Court from the refusal of his motion for a new trial the judgment and sentence of the court below were affirmed in an opinion by ARNOLD, J., now Mr. Justice ARNOLD, in Com. v. Comer, 167 Pa. Superior Ct. 537 (allocatur refused ibid xxvi), 76 A.2d 233. On appeal by relator to this Court from the dismissal of his petition for a writ of error coram nobis the order of the court below was affirmed in an opinion by DITHRICH, J., in Com. ex rel. Comer v. Claudy, 172 Pa. Superior Ct. 380, 94 A.2d 119.
In his present appeal relator complains that he was denied due process in that he was not present at all stages of his trial and that he was denied the right to prove the allegations of his petition by a hearing.
In support of his contention that he was denied due process relator claims that he was not present when the jury which was to try him was selected and impaneled, that neither he nor his counsel were present when additional instructions were given to the jury and that he was denied the right to be present at the argument of his motion for a new trial.
In answer to the allegation in relator's petition that he was not present when the jury was selected the assistant district attorney, in denying the allegation, relied on the record in the office of the clerk of the Quarter Sessions Court of Washington County which states: "And now, Feb. 22, 1950, the defendant, Willard E. Comer, Sr., being arraigned in open Court, pleads Not Guilty and the following Jury is called and sworn to try the case: [names of jurors]." The ...