material to the issue, it is some indication that the trial judge acted wisely. However, since it was not necessary for relator to produce his alleged witness at this time, the Court places no importance upon this facet of the case, although an affidavit from the witness certainly would not have weakened his case and would have corroborated the hearsay testimony presented.
Having presented no showing of an abuse of discretion, let alone an extreme abuse, in the refusal of this continuance, relator has failed to demonstrate any denial of due process.
The second claim, that the trial Court's denial of relator's request for a continuance to call Irving Carter, a witness connected with the transaction, and the refusal of the Court to compel the Commonwealth to call him, was a denial of due process, is subject to the same considerations. However, some further amplification is necessary.
The Commonwealth's principal witness was Harold Carter, an undercover agent for the Philadelphia Police. He testified that on September 5, 1957, he met Irving Carter (apparently no relation) in West Philadelphia and was walking with him when they saw Alvin Drew. Irving left Harold, walked over to relator, returned to Harold and held a conversation. Harold Carter stated that he then approached Drew and purchased narcotics. At the time of the transaction, Irving Carter was about ten feet away.
Relator originally contended that Irving Carter was an eyewitness to the alleged crime and that it was the duty of the Commonwealth to call him. While agreeing that an eyewitness should be called, the Superior Court, on appeal of this case, has already pointed out that there is nothing in the record to indicate that Irving Carter was an eyewitness. Commonwealth v. Drew, 190 Pa.Super. 478, 154 A.2d 285 (1959). With this the Court agrees.
Relator now argues that Irving Carter could have testified as to the identity of Alvin Drew, which was at issue because of the alibi defense. For this reason, a continuance should have been allowed, or the Commonwealth should have been required to produce him. Relator urges that 'common fairness', which he equates with 'due process', makes it the duty of the Commonwealth to produce all witnesses where testimony is germane to the issue, citing Commonwealth v. Cramer, 168 Pa.Super. 1, 76 A.2d 661 (1950). In the Cramer case, the Superior Court held that certain witnesses should have been called. However, the record in that case clearly indicated that the absent witnesses could aid greatly in reaching the truth. Further, the Cramer case came to the Superior Court on appeal and there was no question of due process decided. The Court did not indicate that what it called 'common fairness' was to be equated with 'due process.' In Commonwealth v. Drew, the Superior Court acknowledged that Irving Carter should have been called if his testimony was germane or tended to get to the truth, but the Court apparently did not find that Carter's testimony would have been of such value. The trial Court was of the same opinion and relator has shown nothing that should cause this Court to come to a different conclusion.
These considerations, coupled with the earlier comments on discretion of the trial Court, compel the Court to conclude that relator has failed to show any denial of due process in his second claim.
Having failed to demonstrate that he is being denied his liberty without due process of law, relator's petition for writ of habeas corpus must be denied.
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