Appeal, No. 237, March T., 1957, from order of Court of Common Pleas of Allegheny County, July T., 1957, No. 727, in case of Commonwealth of Pennsylvania ex rel. Earl Richard Saunders v. Angelo C. Cavell, Warden. Order affirmed.
Norman Landy, Harold A. Gold and Wolken & Landy, for appellant.
Edward C. Boyle, District Attorney, George H. Ross and William Claney Smith, Assistant District Attorneys, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
The appellant relator, who is serving a life sentence in the Western Pennsylvania State Penitentiary for a conviction of murder in the first degree, petitioned the court below for a writ of habeas corpus charging that his present restraint resulted from a violation of his constitutional rights at his trial for murder. The matter alleged by the appellant as violative of his fundamental rights was the admission at trial of certain evidence against him. He had assigned the identical complaint for error on his appeal to this court from his conviction for murder and it was then thoroughly canvassed and considered by us and answered adversely to the appellant's contention: see Commonwealth v. Saunders, 386 Pa. 149, 155, 125 A.2d 442.
Notwithstanding that a writ of habeas corpus cannot be used as a substitute for an appeal (Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 46, 96 A.2d 909), which, in truth, is that the relator's present petition amounts to, Judge ALPERN, for the court below, made a complete review of the extended effort to which the trial court went at all times to respect fully and to safeguard the accused's legal rights. The opinion for the learned court below convincingly demonstrates that the evidentiary matter to which the appellant again takes exception was not only properly admissible but that its introduction was initiated by appellant's counsel and that the prosecuting attorney's
subsequent interrogations with respect thereto were without any objection from the appellant.
Nothing helpful can be added to what Judge ALPERN has so well set forth in support of the lower court's refusal of the relator's petition for the writ.
Mr. Justice MUSMANNO dissents.