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COMMONWEALTH EX REL. STONER v. MYERS. (11/15/62)

November 15, 1962

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



Appeal, No. 344, Oct. T., 1962, from order of Court of Common Pleas of Franklin County, Feb. T., 1962, No. 238, in case of Commonwealth ex rel. Ralph Stoner v. David N. Myers, Superintendent. Order affirmed.

COUNSEL

Kenneth F. Lee, with him Black and Davison, for appellant.

Jay L. Benedict, Jr., District Attorney, for appellee.

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

Author: Rhodes

[ 199 Pa. Super. Page 342]

OPINION BY RHODES, P.J.

This is an appeal by relator from an order of the Court of Common Pleas of Franklin County dismissing relator's petition for a writ of habeas corpus. A trial before a judge and a jury, on September 24, 1960, resulted in relator's conviction on both counts of indictment charging (1) burglary, and (2) larceny. Sentence to a term of five to ten years was imposed on the burglary count and a similar sentence (later corrected) to run concurrently on the larceny count.

Relator took no appeal, but, on February 8, 1962, presented a petition for a writ of habeas corpus alleging, inter alia, that his conviction was based on evidence obtained through an illegal search and seizure under the ruling of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684,

[ 199 Pa. Super. Page 3436]

L.Ed.2d 1081 (June 19, 1961). Answers were filed to the petition, and after argument the rule to show cause why a writ of habeas corpus should not be issued was discharged and the petition dismissed.

On this appeal by relator the only question raised is whether evidence submitted at relator's trial was obtained by means of an unconstitutional search and seizure.

The relevant facts are stated in the opinion of the court below as follows:

"The evidence at the trial indicated that the Marine Corps League clubhouse located in Chambersburg was burglarized on the night of March 18-19, 1960. The evidence showed that Stoner was a member of the League and had been in the habit of spending a good deal of time there in the evenings as had a number of other members, and that for a considerable period of time he had ...


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