Whereupon, Judge Roberts, sitting in the Court of Oyer and Terminer, held a hearing on May 22, 1956, at which Stanley Szewczyk was produced as a witness and was examined at length by the appointed counsel for petitioner and was also cross-examined by the District Attorney and by the Court. The petitioner was not brought to this hearing.
After the hearing, the Court entered the following order:
'Roberts, P. J. Orphans' Court, Specially Presiding:
'After hearing the testimony of defendant Stanley Szewczyk, on the motion of defendant Stanley Szocki for a new trial, and upon careful review of Szewczyk's testimony given at Szocki's trial, we are not satisfied that the witness' recanting testimony in this proceeding is true; and therefore a new trial will be denied. See Commonwealth v. Palarino, 168 Pa.Super. 152 (77 A.2d 665), and Commonwealth v. Coroniti, 170 Pa.Super. 245 (85 A.2d 673).
'And now, to wit, June 1, 1956, the rule heretofore granted on defendant Stanley Szocki's motion for a new trial is discharged and the motion is dismissed.'
In this court relator contends he has been deprived of his constitutional rights, alleging lack of due process for the same reasons advanced in the state courts. A federal district court is required to exercise its independent judgment upon consideration of the petition and answer, and the complete record in the state courts ( Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469; DeVita v. McCorkle, 3 Cir., 1954, 216 F.2d 743), and decide issues of fact relating to fundamental fairness. Thompson v. Dye, 3 Cir., 1953, 208 F.2d 565; Ackerman v. Johnston, D.C.W.D.Pa.1955, 139 F.Supp. 890, 892, affirmed 235 F.2d 958. This we have done and find that relator was not convicted on perjured testimony, allegedly given by Stanley Szewczyk, which was procured by coercion or duress at the hands of any of the polic officers of the Commonwealth or City of Erie, or which was otherwise known to any of the prosecuting officers of the Commonwealth.
We do not think we are required to hold another hearing on these issues. As stated in Darr v. Burford, 339 U.S. 200, at page 215, 70 S. Ct. 587, at page 596, 94 L. Ed. 761:
'* * * the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner. Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers.'
The testimony of Stanley Szewczyk relating to these factual issues was found to be incredible by Judge Roberts; it is difficult to see how he could have found it to be otherwise. On this testimony relator could hardly hope to persuade a court that Szewczyk was coerced or testified against relator at the trial under duress or to otherwise show that the prosecution knew that this testimony was perjured.
Nothing constructive would be accomplished by bringing relator and Szewczyk into this court only to hear again that which from the record before us clearly discloses that the petition for the writ must be dismissed. See United States ex rel. Lorenzo v. Com. of Pa., D.C.W.D.Pa.1951, 108 F.Supp. 581, affirmed, 3 Cir., 1951, 192 F.2d 576.
The evidence alleged to have been suppressed by the Commonwealth at the trial consisted of the result of a lie detector test relator claims he was 'forced' to take. Such evidence is not admissible, and therefore and not suppressed in violation of relator's constitutional rights.
The other complaints relator makes are: (1) That evidence was admitted at the trial showing that relator met Szewczyk at the Penitentiary, and (2) that evidence of relator's prior criminal record was admitted for impeaching purposes. Despite the fact that this evidence was admitted without objection, relator claims the admission thereof was prejudicial and presents a federal question. We do not agree. These complaints present evidential questions which are properly subjects of a motion for a new trial, for which a petition for a writ of habeas corpus is not a substitute.
The rule to show cause will be discharged and the petition for writ of habeas corpus dismissed.