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COMMONWEALTH EX REL. BOLISH v. BANMILLER. (05/28/59)

May 28, 1959

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



Appeal, No. 173, Jan. T., 1959, from order of Court of Common Pleas of Lackawanna County, Nov. T., 1958, No. 906, in case of Commonwealth of Pennsylvania ex rel. Daniel Bolish v. William J. Banmiller, Warden. Judgment affirmed.*fn* Proceedings on petition for writ of habeas corpus. Before HOBAN, P.J. Order entered dismissing petition. Relator appealed.

COUNSEL

Daniel Bolish, appellant, in propria persona.

Ralph P. Needle, Assistant District Attorney, and Carlon M. O'Malley, District Attorney, for appellee.

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

Author: Bok

[ 396 Pa. Page 130]

OPINION BY MR. JUSTICE BOK

This is the third appearance of this case. Relator originally was found guilty of first degree murder and given death. We reversed for trial errors: Commonwealth v. Bolish, 381 Pa. 500; 113 A.2d 464 (1955). The second trial resulted in a verdict of first degree murder and a penalty of life imprisonment. This was appealed and affirmed: Commonwealth v. Bolish, 391 Pa. 550; 138 A.2d 447 (1958). Relator now appeals from the denial by the court below of his petition for a writ of habeas corpus. He was represented at trial and on both appeals by able and experienced counsel.

We could affirm out of hand on the ground, immemorially taken, that habeas corpus is not a substitute for an appeal, a writ of error, a motion for a new trial, or the correction of trial errors: Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535; 143 A.2d 660 (1958) and cases cited. However, a few observations may be in order.

[ 396 Pa. Page 131]

Appellant complains that his petition for the writ was denied without a hearing after a rule to show cause had issued and an answer had been filed by the Commonwealth. This is proper when the allegations of the petition are refuted by the trial or court record, which may not be impeached in a collateral proceeding until the contrary competently and affirmatively appears: Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442; 71 A.2d 799 (1950); Commonwealth ex rel. Kaylor v. Ashe, 167 Pa. Superior Ct. 263; 74 A.2d 769 (1950). Where the petition fails to make out a case or where there are no issues of fact, a hearing is unnecessary: Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489; 96 A.2d 122 (1953); Commonwealth ex rel. Bishop v. Claudy, 373 Pa. 523; 97 A.2d 54 (1953); Commonwealth ex rel. Harris v. Banmiller, 391 Pa. 132; 137 A.2d 452 (1958). The case at bar falls within these rules.

Relator's central argument is that the felony-murder doctrine could not legally be applied to him because he was not tried on the arson indictment and because the victim, Flynn, died accidentally. What relator asks is, in effect, a reargument of the appeal from his second conviction and our adoption of the two dissenting opinions at 391 Pa. 550 as the majority view of the Court. We are unwilling to do this because the majority opinion of Mr. Justice ARNOLD there and of the Chief Justice in Commonwealth v. Redline, 391 Pa. 486; 137 A.2d 472 (1958) represent the law of the case and the present law of the Commonwealth. And the record shows not only that the trial judge charged fully and unobjectionable on common law arson as the basis of felony murder but that at trial after relator's counsel had objected successfully to a consolidation of the arson and murder bills, no objection was made to proceeding on the murder bill instead of the arson

[ 396 Pa. Page 132]

    bill. Consolidation or separation of indictments is a matter for the trial judge, whose conclusion will be reversed only for obvious abuse of discretion or prejudice to the defendant: Commonwealth v. Kloiber, 378 Pa. 412; 106 A.2d 820 (1954); Commonwealth v. Patrick, 174 Pa. Superior Ct. 593; 101 A.2d 139 (1953). No ...


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