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COMMONWEALTH EX REL. MERCER v. BANMILLER. (11/16/60)

November 16, 1960

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



Appeal, No. 293, Oct. T., 1960, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1959, No. 486, in case of Commonwealth ex rel. Julius Mercer v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Maxwell P. Gorson, for appellant.

William H. Wolf, Jr., Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

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

Author: Woodside

[ 193 Pa. Super. Page 413]

OPINION BY WOODSIDE, J.

The contentions of the prisoner in this habeas corpus case are of the kind that should be considered only by way of appeal.

In numerous habeas corpus cases, the courts of original jurisdiction and the appellate courts have passed upon the merits of contentions which could have been raised by appeal, and are, therefore, not properly before the courts in habeas corpus actions. This is another such case.

The prisoner contends in this case that the sentencing court abused its discretion in refusing to permit him to withdraw the pleas of guilty to the indictments upon which he was sentenced and is now serving time. This is a question which could have been raised by appeal from the sentences. Commonwealth v. Senauskas, 326 Pa. 69, 73, 74, 191 A. 167 (1937); Commonwealth v. DiPaul, 122 Pa. Superior Ct. 53, 184 A. 480 (1936); Commonwealth v. Sablowsky, 150 Pa. Superior Ct. 231, 27 A.2d 443 (1942); Commonwealth v. Turchetta, 193 Pa. Superior Ct. 376, 165 A.2d 118 (1960). It is not properly before us by petition for writ of habeas corpus. Commonwealth ex rel. Wilson v. Banmiller, 393 Pa. 530, 532, 143 A.2d 657 (1958); Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535, 537, 143 A.2d 660 (1958). This is true even though the courts in habeas corpus cases frequently pass upon questions which should be raised only by way of appeal.

[ 193 Pa. Super. Page 414]

An exception to the general rule that a writ of habeas corpus is not a substitute for appeal exists if it appears that the prisoner was denied due process. Commonwealth ex rel. Wilson v. Banmiller, supra, p. 532; Brown v. Allen, 344 U.S. 443 (1953). As "due process" is a concept which does not lend itself to precise definition, almost every conceivable contention is made in its name. This accounts for the courts' consideration of all kinds of frivolous contentions presented in petitions for writs of habeas corpus which the relators attempt to clothe in the robe of "due process."

There was no lack of due process here. The relator was one of 12 defendants accused on a total of 44 bills of indictment charging a series of robberies. The relator was named in 11 of the bills. A nolle prosequi was entered on seven bills after the relator pleaded guilty on four bills. He was subsequently indicted on seven charges of receiving stolen goods to which he pleaded guilty, but on which no sentences were imposed.

The relator was ably represented by counsel at the preliminary hearing. He was ably represented by another lawyer when he entered his plea and was sentenced. One of his fellow robbers testified in detail at the preliminary hearing concerning the relator's connection with the robberies to which the relator subsequently pleaded guilty. The relator's counsel was present and actively participated in the hearing. There is ...


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