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COMMONWEALTH EX REL. KIMBLE v. KEENAN. (12/14/60)

December 14, 1960

COMMONWEALTH EX REL. KIMBLE, APPELLANT,
v.
KEENAN.



Appeal, No. 183, April T., 1960, from order of Court of Common Pleas of Allegheny County, July T., 1960, No. 335, in case of Commonwealth ex rel. Harold Kimble v. Lawrence P. Keenan, superintendent. Order affirmed.

COUNSEL

Carl Blanchfield, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).

Author: Watkins

[ 194 Pa. Super. Page 171]

OPINION BY WATKINS, J.

This is an appeal from the dismissal of the Court of Common Pleas of Allegheny County of a rule to show cause why a writ of habeas corpus should not be granted. The appellant, Harold Kimble, was convicted for violation of the narcotics law on four bills of indictment in the Court of Quarter Sessions of Allegheny County, and on March 7, 1958, was sentenced to pay a fine of $250, to pay the costs of prosecution and to undergo imprisonment of not less than five years nor more than ten years in the Allegheny County Workhouse, the sentence to run concurrently with the sentence imposed in a prior case of aggravated assault and battery. The court below found that a hearing was unnecessary and so discharged the rule and dismissed the petition.

The questions raised by the petition are as follows: That the appellant was sentenced under the Act of Assembly approved June 19, 1953, P.L. 290, which provides that a first offender who shall be convicted shall pay a fine of not exceeding $2000 and undergo imprisonment of not less than two (2) years and not more than five (5) years; that he was "considered as a second offender" so that he is being incarcerated on an illegal and therefore void sentence; that the sentence imposed was due to a misunderstanding of the law by the sentencing judge that it was mandatory to so sentence; that the conviction was secured by perjured jured testimony; that he was unable to secure a transcript of the testimony because it was never transcribed due to the illness of the stenographer; and that the appellant has obtained an affidavit from the Commonwealth's principal witness, Harry Tabb, a co-defendant, setting forth that his testimony at the appellant's trial was perjured.

Appellant's counsel also complains of the action of the court below in dismissing the petition without a

[ 194 Pa. Super. Page 172]

    hearing. Where there are no factual issues for determination, as here, a hearing is unnecessary. Com. ex rel. Shultz v. Myers, 182 Pa. Superior Ct. 431, 128 A.2d 103 (1956); Com. ex rel. Bishop v. Claudy, 373 Pa. 523, 97 A.2d 54 (1953). Appellant's counsel also sets out as questions involved certain complaints concerning the trial, not included in the petition, and so far as we can discover from the record, not raised below. These questions we will dismiss as being without merit in that the writ of habeas corpus is not a substitute for appeal. Com. ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333.

The complaint concerning the absence of a transcript of testimony was raised by the appellant in his appeal from his conviction and disposed of by this Court in Commonwealth v. Kimble, 187 Pa. Superior Ct. 490, 144 A.2d 598 (1958), wherein we held that the mere absence of the stenographic notes of testimony does not entitle the appellant to a new trial and the trial judge, within his discretion, may dispose of a motion for a new trial and in arrest of judgment, from his knowledge of the evidence, unless, as did not appear in this case, the absence of the transcript prejudiced his case. See also: Com. ex rel. Koffel v. Myers, 184 Pa. Superior Ct. 270, 133 A.2d 570 (1957). The appellant properly raised this question on appeal and it has been disposed of by this Court. It is not a proper question to be raised by habeas corpus. Com. ex rel. Wilkins v. Banmiller, supra. This is also true concerning complaints in the petition and in counsel's argument concerning purported trial errors which were already tested in the motion for a new trial and in arrest of judgment. Com. ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 165 A.2d 400.

We have here, once again, the question of a co-defendant who testified for the Commonwealth recanting and executing an ...


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