March 22, 1961
COMMONWEALTH EX REL. BOUKNIGHT, APPELLANT,
Appeal, No. 435, Oct. T., 1960, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 2952, in case of Commonwealth ex rel. Patrick Bouknight v. David N. Myers, Superintendent. Order affirmed.
Patrick Bouknight, appellant, in propria persona.
Charles L. Durham and Arlen Specter, Assistant District Attorneys, 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.
[ 194 Pa. Super. Page 407]
OPINION BY WATKINS, J.
This is an appeal from the order of President Judge CARROLL, of the Court of Common Pleas No. 5 of Philadelphia County, dismissing, without a hearing, a writ of habeas corpus. The petitioner, Patrick Bouknight, was indicted for aggravated robbery, conspiracy, assault and battery and aggravated assault and battery, respectively. He waived a jury trial and was tried and found guilty before Judge MACELREE, sitting specially, on October 8, 1959. He was sentenced on the robbery bill for a period of four to eight years, plus a fine of $500 and costs. Sentence was suspended on the other bills. He did not take an appeal from the judgment of sentence but filed this petition for writ of habeas corpus on August 1, 1960.
The allegations contained in the petition attacked the sufficiency of the evidence upon which the convictions
[ 194 Pa. Super. Page 408]
were based; raised questions of the credibility of certain witnesses; and complained of the use, by the court below, of his prior criminal record to determine the penalty.
"The matters complained of herein are such as are reviewable only on appeal. Petitioner cannot, therefore, now avail himself of habeas corpus as a remedy since the writ may not be used as a substitute for an appeal." Com. ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333 (1960). As to the complaint concerning the use of his prior criminal record by the trial court in determining sentence, it is unnecessary to comment further than to say it is manifestly without merit.
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