Appeal, No. 151, Oct. T., 1961, from order of Court of Common Pleas of Lancaster County, Jan. T., 1961, Habeas Corpus Docket No. 4, page 162, in case of Commonwealth ex rel. Edward Sherman v. District Attorney of Lancaster County et al. Order affirmed.
Edward Sherman, appellant, in propria persona.
No argument was made nor brief submitted for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 196 Pa. Super. Page 283]
This is an appeal by relator from the order of the Court of Common Pleas of Lancaster County, dated January 6, 1961, dismissing relator's petition for a writ of habeas corpus.
A true bill was found by the grand jury at No. 52, September Term, 1957, Court of Quarter Sessions of arson. Relator was tried, found guilty by a jury, and
[ 196 Pa. Super. Page 284]
sentenced on December 10, 1957, to a term of not less than five years nor more than ten years. At his trial relator was represented by counsel appointed by the court. No motion in arrest of judgment or for a new trial was filed.
On January 6, 1961, relator filed a petition in the Court of Common Pleas of Lancaster County seeking a writ of habeas corpus. On the same day, the petition was dismissed on the ground that it raised no questions cognizable in habeas corpus, but only matters which should have been raised on a motion for new trial. In his petition in the court of common pleas relator avers his innocence, attacks the credibility of the Commonwealth's evidence and witnesses, questions the conduct of his counsel, and avers other alleged trial errors. He also alleges his inablility to pay for and obtain a copy of the notes of testimony taken at the criminal trial.
Relator's mere averments of illegality of sentence and deprivation of constitutional rights do not set forth any facts which, it true, would make out a prima facie case for issuance of a writ of habeas corpus. The petition raises no factual questions requiring a hearing. Com. ex rel. Hunter v. Banmiller, 194 Pa. Superior Ct. 448, 452, 469 A.2d 347; Com. ex rel. Wolcott v. Burke, 173 Pa. Superior Ct. 473, 476, 98 A.2d 206. "In the absence of any allegations in the petition which make out a prima facie case for allowing a writ of habeas corpus, no hearing on the petition was necessary, and the issuance of a rule to show cause was not required. Com. ex rel. De Poe v. Ashe, 167 Pa. Superior Ct. 23, 74 A.2d 767. See Act of May 25, 1951, P.L. 415, 12 PS § 1901 et seq." Com. ex rel. ...