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March 2, 1959

UNITED STATES of America ex rel. Roy HELWIG, Petitioner,
Angelo C. CAVELL, Warden Western State Penitentiary, Pittsburgh 33, Pennsylvania, Respondent

The opinion of the court was delivered by: MARSH

In his petition and supplemental petition for writ of habeas corpus, relator, a convicted state prisoner, averred that evidence favorable to him had been suppressed by the prosecution; and that he was convicted of a charge of burglary and larceny on false and fraudulent evidence and perjured testimony given by his former wife and certain witnesses for the prosecution. *fn1" He averred that this spurious testimony was an instrument of a conspiracy, in which the prosecuting officer, Joseph Antolik, Chief of Police of Girard, Pennsylvania, was a participant, to convict the relator of a burglary which he did not commit. The court being of the opinion that the petitions raised questions of fact, *fn2" ordered a hearing but limited the issues at the hearing:

'1. To facts discovered since the trial which will show that the prosecuting officer or officers conspired and colluded with other persons to obtain relator's conviction of burglary by false and fraudulent evidence and perjured testimony, with knowledge that said co-conspirators or some of them perpetrated the said crime and that relator was innocent.

 '2. To facts showing that the prosecution suppressed and withheld from the jury evidence favorable to relator.

 '3. To facts showing the relator has been denied due process of law and equal protection of the law in violation of the Fourteenth Amendment of the Constitution of the United States.'

 From an examination of the pleadings, transcript of the trial, and testimony taken at the hearing in this court, the court makes the following:

 Findings of Fact.

 1. Captain Verne Teeple, Sergeant Harold G. Rhoda, Patrolman Walter Mackey, and Constable Dale Brooks, witnesses not called at the trial by the Commonwealth, were not in possession of any facts or evidence favorable to relator.

 2. Ann J. Campana, a witness not called at the trial, was not in possession of any facts or evidence favorable to relator.

 3. None of the Commonwealth prosecuting officers, including the prosecutor, Joseph Antolik, Chief of Police of Girard, Pennsylvania, knowingly and intentionally used or participated in any conspiracy to use perjured testimony at the trial of relator.

 4. Relator's rights under the Fourteenth Amendment were not violated at his trial, nor was he the victim of fundamental unfairness.


 Particularly because relator represented that the testimony of five 'eye witnesses' was suppressed and withheld by the prosecution 'whose testimony would prove that (he) was falsely accused of burglary', *fn3" a hearing was ordered and subpoenas issued for, inter alia, these witnesses. *fn4" None of these five witnesses were subpoenaed by the Commonwealth or testified at the relator's trial. At the habeas corpus hearing none of them testified to any facts which would lead the court to conclude that relator was falsely accused of burglary. In fact, had their testimony been offered at the trial, it would have corroborated the testimony of other Commonwealth witnesses to the effect that relator was in possession of recently stolen property which he sold to Joseph Campana and Benjamin Blakely in Warren, Ohio.

 After conviction relator appealed to the Pennsylvania Superior Court. That court affirmed the conviction, Commonwealth v. Helwig, 184 Pa.Super. 370, 134 A.2d 694. At page 375 of 184 Pa.Super., at page 696 of 134 A.2d of the opinion, it was stated that the relator had raised 54 questions in his brief for reversal of the conviction and the granting of a new trial. The relator confirmed *fn5" a statement made at the hearing that these questions included the allegation made here that relator was framed and convicted on perjured testimony. The Superior Court stated that 'the entire brief and record has received detailed and careful study'.

 It is well settled that the sufficiency of the evidence involving errors of law or of fact must be raised by appeal, and may not be relitigated in a collateral attack on a judgment by way of a habeas corpus proceeding. See Arthur v. United States, 5 Cir., 1956, 230 F.2d 666 and cases cited therein.

 At the trial relator charged that he had been framed by Joseph Campana, Benjamin Blakely, Ann Campana, and his former wife, Cora. In his petition he averred that the prosecutor knowingly used this perjured testimony to convict him. These accusations were thoroughly litigated at the trial which lasted eight days. Any proof relator had to the effect that perjured testimony was being used against him and that he was being framed could have been and was put in evidence. The alleged fabrications and inconsistencies were brought out in the testimony for the jury's scrutiny. All witnesses relator wanted were subpoenaed or sent for and brought to the trial at great inconvenience and expense. The trial judge was exceedingly patient and accorded relator every opportunity to put in all his evidence and to make his argument that he was being 'framed' on perjured testimony. The evidence was fairly summarized in a comprehensive and masterful charge. It is the jury's duty to determine what testimony is believable and to reconcile inconsistent and conflicting testimony. This the jury did and found relator guilty. We do not think it is the purpose of a habeas corpus proceeding to retry the case or retry any matters which were considered by the jury.

 Such fabrications, inconsistencies and contradictions which relator points out and wishes to point out in the trial transcript were only of the kind often present in a jury trial, and, having been resolved adversely to the relator by the jury, are of no significance now. United States v. Jakalski, 7 Cir., 1956, 237 F.2d 503, 505. Immaterial and trivial conflicts in testimony do not constitute perjury invalidating conviction of a crime. A question, fully litigated at the trial and on appeal from the conviction, as to whether relator was 'framed' and falsely accused of the burglary, may not be relitigated in a habeas corpus proceeding. In re Sawyer's Petition, 7 Cir., 1956, 229 F.2d 805; United States v. Spadafora, 7 Cir., 1952, 200 F.2d 140; Cobb v. Hunter, 10 Cir., 1948, 167 F.2d 888.

 Relator insisted that if permitted at the habeas corpus hearing, he could have demonstrated that the various Commonwealth witnesses and his former wife, Cora, told many lies at the trial. He said to do this would take from 5 days to a week. *fn6" He claimed that Cora 'maliciously, deliberately and knowingly told over 300 lies' at the trial. *fn7" An examination of the transcript of the trial discloses many inconsistencies, and, no doubt, if we had permitted a detailed examination at the habeas corpus hearing of all the witnesses relator desired to subpoena, including Cora, further inconsistencies would have been disclosed. The burglary occurred in September, 1954, and recollections of the details of subsequent events have faded. This would be particularly true of the two principal Commonwealth witnesses from Ohio who were ex-convicts and not of a type noted for accurate, detailed memories.

 Joseph Campana and Benjamin Blakely, the ex-convicts, and Janes Jacobsen, the victim of the burglary, were produced for relator at the hearing. None of these witnesses admitted to any willful perjury and all denied that they had conspired to frame relator. Chief Antolik denied he was a participant in any conspiracy to frame relator or knowingly used any perjured testimony to convict him.

 Thus assuming the existence of the inconsistencies, inaccuracies, faulty recollections and 'lies' in the trial record, the relator, except for his own allegations and expectations, has failed to prove that any perjured testimony on the part of any Commonwealth witness was knowingly and intentionally used by the prosecuting authorities.

 Relator complains that the prosecutor and the Assistant District Attorney knowingly and intentionally did not reveal to the court and jury that relator's witness, Cora Helwig, was lying when she testified that the stolen typewriter which relator brought into her house following the burglary was in a 'carrying case'. *fn8" This contention is specious. There is no obligation on the prosecuting authorities to correct the testimony of a defense witness. The indictment alleged that a typewriter had been stolen in the burglary. Jacobsen, the victim, identified the typewriter and other articles which were stolen from his place of business; Antolik, the prosecutor, identified the typewriter and other articles which he had recovered from Campana and Blakely in Warren, Ohio, and returned to Jacobsen; Campana testified that relator had sold him the typewriter which Antolik confiscated; none of these witnesses mentioned that the 'carrying case' had also been stolen. Relator's assertion that the stolen typewriter was offered as an exhibit enclosed in its 'carrying case' is of no significance; it would have been a simple matter for him to have removed the case for purposes of cross-examination if he had so desired.

 After reading the trial testimony of relator's former wife, Cora, she would not be considered by this court to be a credible witness. Though ill, she was called by relator at the trial as a defense witness and interrogated by him for four days. This examination exposed many and serious contradictions, but none of them were shown at the habeas corpus hearing to have been induced by the Commonwealth's prosecutor. Other than relator's allegation, nothing was offered even to hint that his ex-wife was in unlawful collusion with any of the Commonwealth prosecuting or law-enforcement officers.

 Relator offers to prove other falsifications by his wife and by Campana, *fn9" but not one shred of evidence is offered or was adduced to show that the prosecutor knew of these falsifications or intentionally used them.

 At the conclusion of the hearing, relator insisted he should have the opportunity to examine his former wife, Cora, *fn10" and other witnesses. Opportunity was then given relator to specify what he expected to prove by these witnesses and, if material, he was advised that a further hearing would be held and subpoenas issued. Accordingly, relator requested that subpoenas be issued for nine witnesses. These include his former wife and five witnesses whose testimony had already been taken at the hearing. The testimony offered is for the purpose of demonstrating further perjured testimony on the part of his former wife and some of the Commonwealth's witnesses at the trial. But there is no indication whatsoever that any of such additional ...

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