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COMMONWEALTH EX REL. MILLER v. BANMILLER. (11/16/61)

THE SUPERIOR COURT OF PENNSYLVANIA


November 16, 1961

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

Appeal, No. 327, Oct. T., 1961, from order of Court of Common Pleas of Montgomery County, No. 61-5136, in case of Commonwealth ex rel. Edward Miller v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Edward Miller, 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 267]

OPINION PER CURIAM

This is an appeal by relator from order of Court of Common Pleas of Montgomery County, dated June 12, 1961, dismissing relator's petition for writ of habeas corpus filed on June 9, 1961.

Relator was tried before a judge and a jury on February 16 and 17, 1960, and found guilty on nine bills of indictment charging burglary, larceny, receiving stolen goods, and conspiracy. Relator's motions for a new

[ 196 Pa. Super. Page 268]

    trial and in arrest of judgment were dismissed, and on June 1, 1960, relator was sentence on bill No. 320, November Term, 1958, to a term of not less than five years nor more than ten years in the Eastern State Penitentiary, now State Correctional Institution at Philadelphia.

The order dismissing relator's petition is affirmed on the following portions of the opinion of Judge GROSHENS of the Court of Common Pleas of Montgomery County:

"Relator contends, as he did in his motion for a new trial, that he was convicted on perjured testimony. He contends that the perjured testimony was procured by the Commonwealth through promises of consideration, and threats, to the alleged perjurer, a co-defendant of relator.

"We conclude that the petition should be dismissed without the holding of a hearing. It has been repeatedly held that 'an attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus.' Com. ex rel. Cobb v. Burke, 176 Pa. Superior Ct. 60 [63] (1954) [107 A.2d 207]; Com. ex rel. Estelle v. Cavell, 191 Pa. Superior Ct. 200 [206] (1959) [156 A.2d 615]; Com. ex rel. Kimble v. Keenan, 194 Pa. Superior Ct. 169 [173] (1960) [166 A.2d 668]. Relator raised this question in his motion for a new trial. The court fully considered the alleged errors and dismissed the motion. There was no appeal. The writ of habeas corpus may not be used as a substitute for an appeal. Com. ex rel. Patrick v. Banmiller, 398 Pa. 163 [165] (1960) [157 A.2d 214]. The relator properly raised this question in his motion for a new trial and it may not be raised now be a writ of habeas corpus.

"Our review of the record satisfies us again that petitioner had a fair and impartial trial upon the merits, that he was represented by competent counsel; that the

[ 196 Pa. Super. Page 269]

    jury returned a proper verdict and that the court has already passed upon the question of the testimony of the alleged perjurer."

Disposition

The order is affirmed.

19611116

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