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COMMONWEALTH EX REL. MCDONNELL v. RUNDLE. (03/20/63)

THE SUPERIOR COURT OF PENNSYLVANIA


March 20, 1963

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

Appeal, No. 362, Oct. T., 1962, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1962, No. 2261, in case of Commonwealth ex rel. Mahlon McDonnell v. A. T. Rundle, Superintendent. Order affirmed.

COUNSEL

Mahlon McDonnell, appellant, in propria persona.

Stanley M. Shingles and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

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

Author: Watkins

[ 200 Pa. Super. Page 363]

OPINION BY WATKINS, J.

This is an appeal from an order of the Court of Common Pleas No. 4 of Philadelphia County, dismissing a petition for a writ of habeas corpus.

The petitioner, Mahlon McDonnell, was indicted, tried and convicted in May, 1948 on six bills of indictment charging him with contributing to the delinquency of minors; solicitation to commit sodomy; assault and battery; aggravated assault and battery; and assault

[ 200 Pa. Super. Page 364]

    and battery with intent to ravish. The sentences on each of the six bills were to run consecutively and totaled eleven and one-half to twenty-three years.

During the period 1954 to 1957, the sentences on three of the bills were revoked and deleted from the record. This resulted in a reduction of the term of imprisonment to not less than seven and one-half years and not more than fifteen years with the terminal date of the maximum period being May 7, 1963. With more than five years of his sentence remaining, the petitioner was admitted to parole on December 31, 1957, and on January 26, 1959, he was convicted of similar sexually oriented crimes and sentenced to eleven and one-half to twenty-three months for indecent assault.

On july 11, 1960, he was returned to the Parole Board as a parole violator and imprisoned to complete serving the unexpired portion of his prior sentences. As a result of the violation the terminal date of the maximum sentence is now May 3, 1965.

The petition for this writ was directed to the 1948 convictions. The contention of the relator is directed to the sufficiency of the evidence. "... the remedy of habeas corpus may not properly be used as a substitute for an appeal for the review of alleged trial errors which could have been considered and, if they were actually such, could have been corrected in the regular course of appellate review." Com. ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A.2d 434 (1959).

The petitioner raised a question that "cunnilingus", while conceding that evidence made out this act, was not included in Sec. 501 of the Act of 1939, P.L. 872, 18 P S. ยง 4501. This is without merit. Com. v. Bowes, 166 Pa. Superior Ct. 625, 74 A.2d 795 (1950); Com. v. Hornberger, 199 Pa. Superior Ct. 174, 184 A.2d 276 (1962).

His contention concerning illegal search and seizure is not pertinent to this petition and equally without

[ 200 Pa. Super. Page 365]

    merit. Com. v. Mancini, 198 Pa. Superior Ct. 642, 646, 184 A.2d 279 (1962).

We agree with President Judge ALESSANDRONI that the petition amounts to an intent to utilize habeas corpus as a substitute for appeal. Com. ex rel. Gaynor v. Maroney, 199 Pa. Superior Ct. 81, 184 A.2d 409 (1962).

Disposition

Order affirmed.

19630320

© 1998 VersusLaw Inc.



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