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COMMONWEALTH EX REL. BANKER v. MARONEY. (12/12/62)

THE SUPERIOR COURT OF PENNSYLVANIA


December 12, 1962

COMMONWEALTH EX REL. BANKER, APPELLANT,
v.
MARONEY.

Appeal, No. 219, April T., 1962, from order of Court of Common Pleas of Allegheny County, April T., 1962, No. 2556, in case of Commonwealth ex rel. John Banker v. James F. Maroney, Superintendent. Order affirmed.

COUNSEL

John Banker, appellant, in propria persona.

William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.

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

Author: Woodside

[ 199 Pa. Super. Page 571]

OPINION BY WOODSIDE, J.

The petitioner in this habeas corpus case was convicted by a jury on two charges of armed robbery. After a motion for a new trial was argued and refused, he was sentenced on March 20, 1961, to imprisonment for a term of 8 to 16 years. He did not appeal from the sentence, but eleven months later filed this petition for a writ of habeas corpus.

The petition averred in substance that the indictment was defective; that the Commonwealth's witness had committed perjury; that the court had committed error in admitting certain evidence: and that the petitioner was not present when the verdict was recorded. The court below, by order dated May 10, 1962, held that the petition had no merit on its face and dismissed the petition. The relator appealed to this Court.

[ 199 Pa. Super. Page 572]

A petition for a writ of habeas corpus cannot be used as a substitute for an appeal. Matters reviewable on an appeal will not be considered in a habeas corpus proceeding. Commonwealth ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333 (1960); Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535, 143 A.2d 660 (1958); Commonwealth ex rel. Murray v. Keenan, 186 Pa. Superior Ct. 107, 140 A.2d 361 (1958). This applies to cases where the defendant was not present when the verdict was taken. Commonwealth ex rel. Baxter v. Ashe, 368 Pa. 629, 84 A.2d 186 (1951); Commonwealth ex rel. Aldrich v. Ashe, 149 Pa. Superior Ct. 25, 26 A.2d 211 (1942).

Disposition

Order affirmed.

19621212

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