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COMMONWEALTH EX REL. RICCIO v. DILWORTH ET AL. (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. RICCIO, APPELLANT,
v.
DILWORTH ET AL.



Appeals, No. 260, Oct. T., 1954, and No. 24, Oct. T., 1955, from orders of Court of Quarter Sessions of Philadelphia County, March T., 1952, No. 1371, in cases of Commonwealth of Pennsylvania ex rel. Nicholas Riccio v. Richardson Dilworth, District Attorney, Philadelphia County, et al., and Commonwealth of Pennsylvania v. Nicholas Riccio. Orders affirmed.

COUNSEL

Ivan Michaelson Czap, for appellant.

Victor Wright, Assistant District Attorney, with him William T. Gennetti, Assistant District Attorney, and Samuel Dash, Acting District Attorney, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Ross

[ 179 Pa. Super. Page 65]

OPINION BY ROSS, J.

Nicholas Riccio, appellant in this consolidated appeal, sought in the court below to gain his freedom or a new trial by virtue of a petition for special relief and a petition for a writ of error coram nobis. The petition for special relief, treated as a petition for a writ of habeas corpus, was dismissed after full argument.

[ 179 Pa. Super. Page 66]

The petition for writ of error likewise was dismissed after a full hearing. This appeal followed.

Appellant and Larry Mooney were tried on April 9, 1952 before a jury on a charge of robbery. At the same trial Larry Mooney and his brother, Charles Mooney, were tried on another charge of robbery. A Henry Myers, who was also tried at this time, was acquitted. Appellant and the Mooneys were convicted. Appellant pleaded not guilty and has consistently maintained his innocence. His motion for new trial was dismissed after argument, and no appeal was taken from the dismissal. Two years later the petitions for special relief and writ of error were filed.

The petition for special relief is a stranger to our procedural system. It was treated as a petition for writ of habeas corpus by the court below, and since appellant makes no objection we will so treat it on this appeal. It sets forth as the basis for relief: First, that Riccio was convicted as a result of a mistaken identity by one of the victims; second, that Charles Mooney has since the trial confessed that he, not Riccio, was the accomplice of Larry Mooney in the robbery; third, that Riccio has been steadfast in his denial of guilt; and fourth, that he has repeatedly requested a lie detector or polygraph test to prove his innocence.

The question of the victim's identification and the appellant's steadfast denial of guilt are clearly matters which should have been raised on an appeal from the conviction. They are purely matters of sufficiency of the evidence and cannot be raised in a habeas corpus proceeding. Com. ex rel. Fox v. Tees, 175 Pa. Superior Ct. 453, 106 A.2d 878.

Appellant stresses the Mooney confessions in his proceeding for writ of error coram vobis; hence it is not incumbent upon us to discuss it under this habeas corpus ...


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