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COMMONWEALTH EX REL. YESCHENKO v. KEENAN. (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. YESCHENKO, APPELLANT,
v.
KEENAN.



Appeal, No. 21, April T., 1955, from order of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 359, in case of Commonwealth of Pennsylvania ex rel. George Yeschenko v. Lawrence P. Keenan, Superintendent, Allegheny County Workhouse. Order affirmed.

COUNSEL

George Yeschenko, appellant, in propria persona.

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

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ross

[ 179 Pa. Super. Page 147]

OPINION BY ROSS, J.

George Yeschenko appeals from the dismissal of his petition for a writ of error coram nobis, treated by the court below as a petition for a writ of habeas corpus. Appellant, on February 7, 1952, pleaded guilty to assault with intent to commit robbery, aggravated assault and battery, and to pointing firearms. He was sentenced to imprisonment for a period of from five to ten years on the assault with intent to commit robbery charge, and for a term of from one to two years on each of the other two charges, the latter sentences to run concurrently with the five to ten year sentence. Apparently no appeal was taken. It appears, therefore, that he has served the one to two year sentences and has, as a practical matter, nothing to gain by his attack upon them.

[ 179 Pa. Super. Page 148]

Appellant raises essentially two questions: (1) Is the writ of error coram nobis the proper remedy to attack a sentence upon a plea of guilty and was it thus error for the court below to consider the petition as one for a writ of habeas corpus, and (2) Did the evidence sustain his conviction of assault with intent to commit robbery despite the fact that he pleaded guilty? He raised numerous other questions in the court below.

A writ of error coram nobis functions only to bring before the court which rendered the judgment such matters of fact which were unknown at the time judgment was rendered but which, had they been known, would have prevented rendition of the judgment. It is designed to correct errors of fact only and cannot be used to correct errors of law. Com. v. Harris, 351 Pa. 325, 328, 41 A.2d 688; Com. v. Connelly, 172 Pa. Superior Ct. 363, 365, 94 A.2d 68. Clearly the writ is not proper here. Appellant in his petition raised only a number of legal questions. He brought before the court no previously unknown facts whatever. His petition asserted that the sentences were illegal because: his court-appointed counsel did not properly represent him; his prior criminal record was not properly introduced in evidence; two of the charges should have merged; and the evidence was insufficient to sustain the convictions. These are not properly raised in a writ of error coram nobis. These assertions, though often improperly so, are usually found in a petition for habeas corpus and it was not error for the court below to consider the petition as such in the instant case.

The reasons asserted in the petition for the illegality of the confinement are matters which should properly have been raised on an appeal from the conviction. We have repeatedly held that a habeas corpus

[ 179 Pa. Super. Page 149]

    proceeding is not a substitute for an appeal. Com. ex rel. Fox v. Tees, 175 Pa. ...


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