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COMMONWEALTH EX REL. CURRY v. MYERS. (06/15/61)

June 15, 1961

COMMONWEALTH EX REL. CURRY, APPELLANT,
v.
MYERS.



Appeal, No. 54, Oct. T., 1961, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1960, No. 1552, in case of Commonwealth ex rel. David N. Curry v. David N. Myers, Superintendent. Order affirmed as to Bill No. 75; sentence imposed on Bill No. 76 vacated.

COUNSEL

David N. Curry, appellant, in propria persona.

Anthony J. Smith and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

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

Author: Wright

[ 195 Pa. Super. Page 482]

OPINION BY WRIGHT, J.

David N. Curry has appealed from an order of Court of Common Pleas No. 5 of Philadelphia County, entered November 4, 1960, dismissing his petition for a writ of habeas corpus. We have reviewed the original trial record, which may relevantly be considered and may not be collaterally impeached. See Commonwealth ex rel. Chaney v. Cavell, 185 Pa. Superior Ct. 82, 138 A.2d 180. The pertinent facts are as follows:

Appellant and his wife had been separated for some time, the wife living at the home of her parents. It was appellant's custom to visit his wife at intervals in order to see their child. On one of these occasions he took a revolver belonging to his father-in-law. At 7:30 A.M. on December 20, 1957, armed with this revolver, appellant went to the father-in-law's house. He gained entrance through a cellar window, and ascended to the third floor where he found his wife asleep in bed. He fired one shot into her head. Appellant remained in the house for approximately thirty minutes and then "decided to leave and let someone come and find her". After stopping at a bar for a drink, he went to his brother's residence, where he was eventually apprehended by police officers at eight o'clock that evening. Meanwhile, the wife lay in a pool of blood until her father came home from work at 2:30 P.M. She was removed to a hospital where she remained in a coma until sometime in February, 1958. She was not released from the hospital until June, 1958. At the time of the trial, October 20, 1958 she was still badly crippled, and her speech was impaired.

[ 195 Pa. Super. Page 483]

Following his arrest, appellant was taken to City Hall where he was questioned and made a statement admitting his guilt. He was then taken to a police station and detained for a hearing the next morning. At March Sessions, 1958, the grand jury returned three indictments as follows: Bill No. 75 charged assault and battery, aggravated assault and battery, and assault and battery with intent to murder; Bill No. 76 charged commission of a crime of violence while armed with a firearm; Bill No. 78 charged carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. Appellant was represented by counsel. Jury trial was waived. A demurrer was sustained as to Bill No. 78. The trial judge found appellant guilty on Bills Nos. 75 and 76. No post-conviction motions were filed. On Bill No. 75 appellant was sentenced to serve a term of three to six years. On Bill No. 76 he was sentenced to serve a consecutive term of one to three years.

In his brief appellant advances many of the usual trite contentions. He variously avers that he was arrested and held "without witness to the fact that he committed a crime"; that he was not allowed to see or communicate with an attorney at the time of his arrest; that there was no proper preliminary hearing; that it was unlawful to taken him to police headquarters for questioning; that his confession was coerced; that he was convicted on perjured testimony, and that the evidence was insufficient to sustain his conviction. we find no merit whatever in any of these contentions.

It Commonwealth ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 165 A.2d 400, we discussed the subject of habeas corpus at considerable length. In brief, relief from alleged trial errors may not be obtained by habeas corpus, as the writ is not a substitute for a new trial or an appeal. ...


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