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COMMONWEALTH EX REL. NORMAN v. BANMILLER. (04/06/59)

April 6, 1959

COMMONWEALTH EX REL. NORMAN, APPELLANT,
v.
BANMILLER.



Appeal, No. 362, Jan. T., 1958, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1957, No. 1853, in case of Commonwealth of Pennsylvania ex rel. Charles Norman v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Christopher F. Edley, with him Lewis Tanner Moore, and Moore, Lightfoot & Edley, for appellant.

Charles Lee Durham, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Bell

[ 395 Pa. Page 234]

OPINION BY MR. JUSTICE BELL

Petitioner was convicted in May, 1949, on eight bills of indictment charging armed robberies, and was sentenced to 80 to 160 years. On July 1, 1949, he was convicted by a jury of first degree murder occurring during a robbery on March 12, 1949, in which he shot and killed Herman Weintraub, and was sentenced to life imprisonment.

Petitioner on February 10, 1958, applied for a writ of habeas corpus from his conviction of murder alleging (1) that his confession was coerced; and (2) that his trial was so permeated with trial errors that collectively these errors constituted fundamental error amounting to a denial of due process of law.

The Commonwealth filed an answer denying the facts alleged, and averring particularly (a) that petitioner's confession was voluntary, and (b) the question of whether the confession was voluntary or coerced, was submitted to the jury, and (c) that the jury found after hearing voluminous testimony thereon, that the confession was not coerced. The lower Court dismissed the petition for a writ of habeas corpus after hearing argument, but without hearing any evidence.

In Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 137 A.2d 236, this Court, speaking through Chief Justice JONES, said (page 144): "The remedy for trial error is by motion for new trial followed,

[ 395 Pa. Page 235]

    if necessary, by an appeal. We, as well as the Superior Court, have frequently recognized that a habeas corpus petition is not available for the correction of trial errors which could have been reviewed and corrected on appeal; it is not a substitute for an appeal or for a writ of error or for a motion for a new trial: Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A.2d 593; Commonwealth ex rel. Ketter v. Day, 181 Pa. Superior Ct. 271, 273, 124 A.2d 163; Commonwealth ex rel. Jones v. Day, 181 Pa. Superior Ct. 37, 39, 121 A.2d 896; Commonwealth ex rel. Ruger v. Day, 176 Pa. Superior Ct. 479, 482, 108 A.2d 818; Commonwealth ex rel. Cobb v. Burke, 176 Pa. Superior Ct. 60, 63, 107 A.2d 207; Commonwealth ex rel. Sharpe v. Burke, 174 Pa. Superior Ct. 350, 354, 101 A.2d 397."

However, where the record shows a trial or sentence which was so fundamentally unfair as to amount to a denial of due process, or that some basic fundamental error was committed which deprived defendant of one of his constitutional rights, relief may be sought by habeas corpus: Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 347, 106 A.2d 587; Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 494, 96 A.2d 122; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118; Palmer v. Ashe, Warden, 342 U.S. 134. As to what constitutes a denial or violation of due process of law, see Townsend v. Burke, 334 U.S. 736; United States ex rel. Smith v. Baldi, 344 U.S. 561; Brown v. Allen, 344 U.S. 443, 465; Speller v. Allen, 344 U.S. 443; Daniels v. Allen, 344 U.S. 443; Watts v. Indiana, 338 U.S. 49; Turner v. Pennsylvania, 338 U.S. 62; Harris v. South Carolina, 338 U.S. 68; Chambers v. Florida, 309 U.S. 227; Commonwealth ex rel. Sheeler v. Burke, 367 Pa. 152, 79 A.2d 654; Powell v. Alabama, 287 U.S. 45.

[ 395 Pa. Page 236]

Under either or both of the aforesaid tests, there is no merit in the applicant's petition.

The principal and real question which petitioner is now raising in this habeas corpus proceeding, viz., the voluntariness or coercion of his confession, was raised by him and was passed upon by the jury adversely to him after hearing conflicting evidence. "When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U.S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U.S. 227.": Brown v. Allen, 344 U.S. 443, 475. The facts admitted by the State do not show coercion, and under such circumstances this Court will not re-examine the question of the voluntariness of the confession which was passed upon by the jury adversely to defendant.

This Court pertinently said in Commonwealth ex rel. Geiger v. Burke, 371 Pa. 230, 89 A.2d 495 (page 232): "The present petition is an attempt to reopen the same question of fact which was resolved against relator by the jury at his trial, and the evidence sought to be introduced in support of the petition is similar in kind to that presented at the trial. We have repeatedly held that the writ of habeas corpus cannot be used to re-examine matters of fact that were passed on by the jury at the trial: Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904."

If the law were otherwise, there would be no finality to any conviction or sentence because the person who was convicted and sentenced could file repeated petitions for a writ of habeas corpus raising, in almost identical language, the very issues or matters of fact which were previously decided against him by the jury and/or by this ...


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