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COMMONWEALTH EX REL. DESIMONE v. CAVELL. (01/21/58)

January 21, 1958

COMMONWEALTH EX REL. DESIMONE, APPELLANT,
v.
CAVELL.



Appeal, No. 159, April T., 1957, from order of Court of Common Pleas of Fayette County, March T., 1957, No. 1293, in case of Commonwealth of Pennsylvania ex rel. John DeSimone v. Angelo C. Cavell, Warden. Order affirmed.

COUNSEL

John DeSimone, appellant, in propria persona.

Robert L. Webster, Assistant District Attorney, and Joseph E. Kovach, District Attorney, for appellee.

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

Author: Rhodes

[ 185 Pa. Super. Page 132]

OPINION BY RHODES, P.J.

This proceeding is another example of the abuse of habeas corpus. Such repeated petitions by relator, an experienced offender,*fn1 manifest a lack of sincerity and an absence of any meritorious ground for a writ. The present petition filed on April 30, 1957, was the third petition by relator which has been presented to the Court of Common Pleas of Fayette County. The first petition filed October 27, 1954, was dismissed by the court on January 6, 1955. On appeal the order of the court below was affirmed in Com. ex rel. DeSimone v. Maroney, 179 Pa. Superior Ct. 300, 116 A.2d 747, allocatur refused 179 Pa. Superior Ct. xxvi, certiorari denied 350 U.S. 976, 76 S.Ct. 452, 100 L.Ed. 846. A second petition was dismissed on January 18, 1956. Another petition was filed with the United States District Court for the Western District of Pennsylvania on March 15, 1956; a hearing was held on April 13, 1956; further hearing was denied on May 1, 1956; a

[ 185 Pa. Super. Page 133]

    writ of habeas corpus was denied on June 5, 1956; and a rehearing was denied on August 8, 1956.*fn2

Each petition is characterized by an attempt to state some new issue that may be receptively received by some court.

In the proceedings which were before us in Com. ex rel. DeSimone v. Maroney, supra, 179 Pa. Superior Ct. 300, 116 A.2d 747, relator made several allegations, among them being that he was not present when the jury was sworn at his trial in the Court of Oyer and Terminer of Fayette County on September 4, 1940, and that he was not present when the verdict was rendered on September 5, 1940. The record established the falsity of these allegations.

Relator alleges in the present petition that his court-appointed counsel was not present when he was sentenced on September 5, 1940, the same day the verdict of the jury was returned. From the ...


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