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COMMONWEALTH EX REL. BUTLER v. RUNDLE. (05/21/62)

May 21, 1962

COMMONWEALTH EX REL. BUTLER, APPELLANT,
v.
RUNDLE.



Appeal, No. 257, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, Sept. T., 1961, No. 1359, in case of Commonwealth ex rel. Thomas A. Butler v. A. T. Rundle, Superintendent. Order affirmed.

COUNSEL

Thomas A. Butler, appellant, in propria persona.

No argument was made nor brief submitted for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Bok, Eagen and O'brien, JJ.

Author: Bok

[ 407 Pa. Page 535]

OPINION BY MR. JUSTICE BOK

Appellant was convicted of murder in the first degree and sentenced to life imprisonment. No appeal was taken. He now appeals from the dismissal without a hearing of his petition for a writ of habeas corpus in the Court of Common Pleas of Delaware County.

[ 407 Pa. Page 536]

The case is submitted to us on appellant's brief without oral argument.

A hearing is not required when there is no issue of fact to be decided or when the facts averred by relator, even if believed, are insufficient to warrant granting the writ of habeas corpus. Commonwealth ex rel. Bishop v. Claudy, 373 Pa. 523, 97 A.2d 54 (1953). Habeas corpus is no substitute for an appeal or for a writ of error or for a motion for a new trial or for the correction of trial errors, but rather lies to correct void or illegal sentences or an illegal detention, or where the record shows a trial or sentence or plea so fundamentally unfair as to amount to a denial of due process or other constitutional rights, or where for other reasons the interests of justice imperatively required it. Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A.2d 122 (1953).

Appellant first alleges a denial of due process in the prosecutor's introducing a revolver other than the one he said in his confession was the one he used, and from that he reasons that the suppression of the revolver mentioned in the confession demonstrates that a ballistics test would show his revolver to be not the murder weapon. In his confession appellant identified a ".32 calibre, S and W, CTGE., serial No. 376130", as the weapon he used. The revolver introduced as Commonwealth's exhibit C-51 was first described by a Commonwealth witness as a "Harrington and Richardson revolver" but later it was described by another witness as a "S. & R. Harrington and Richardson revolver". Regardless of what it was called the revolver was identified at the trial as the one fished out of the culvert indicated by appellant and on direct examination at the trial appellant identified the revolver introduced at the trial and which had been shown to be the murder weapon as his own and the one that he used to kill the victim.

[ 407 Pa. Page 537]

Appellant further alleges denial of due process of law in the introduction of unmarked bullets as being the cause of death. Four bullets, identified as having been fired from appellant's revolver, were taken from the body, three from the chest area, and one from the left shoulder, this last one having entered the right temple and travelled diagonally down and through the brain. This was the only bullet at trial which, because of the bullet's irregular shape, specifically identified the wound it ...


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