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COMMONWEALTH EX REL. RYAN v. RUNDLE. (07/02/63)

July 2, 1963

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



Appeal, No. 30, May T., 1963, from order of Court of Common Pleas of Dauphin County, June T., 1962, No. 1764, in case of Commonwealth ex rel. Joseph Ryan v. A. T. Rundle, Warden. Order affirmed.

COUNSEL

Joseph Ryan, appellant, in propria persona.

John A. F. Hall, Assistant District Attorney, and Martin H. Lock, District Attorney, for appellee.

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

Author: Eagen

[ 411 Pa. Page 614]

OPINION BY MR. JUSTICE EAGEN

The appellant, Joseph Ryan, on March 26, 1954, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. No request for a new trial was made, nor was an appeal filed from the judgment of sentence.*fn*

[ 411 Pa. Page 615]

In February 1963, an action for habeas corpus was instituted, which the lower court dismissed without hearing. This appeal followed. This is the second such action instituted by the appellant. His previous request for a writ of habeas corpus, filed on April 6, 1959, was also denied by the lower court and its action affirmed by this Court on appeal: Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. 326, 162 A.2d 354 (1960).

In his previous petition, it was urged that two members of the jury when polled did not assent to or agree with the verdict as announced and recorded in court. This is reasserted in the present action. The record of the proceedings belie appellant's factual allegations in this regard. The correct facts are recited and were carefully considered in Commonwealth ex rel. Ryan v. Banmiller, supra, and no further discussion of this issue is required here. It is devoid of merit.

In the instant action, seven additional reasons are cited in support of appellant's demand for release from confinement. In each instance, they allege error in the conduct of the trial. This Court has reiterated over and over again that habeas corpus is not a substitute for an appeal, or a writ of error, or for a motion for a new trial for the correction of trial errors: Commonwealth ex rel. Wilson v. Banmiller, 393 Pa. 530, 143 A.2d 657 (1958); Commonwealth ex rel. Watters v. Myers, 406 Pa. 117, 176 A.2d 448 (1962), and cases cited therein. However, habeas corpus is proper and such relief should be granted if the conviction or sentence of the defendant were secured in a proceeding lacking due process of law, or one wherein fundamental rights were denied, or constitutional guarantees impinged upon. See Commonwealth ex rel. Sleighter v. Banmiller, 392 Pa. 133, 139 A.2d 918 (1958); Commonwealth ex rel. Butler v. Rundle, 407 Pa. 535, 180 A.2d 923 (1962); Fay v. Noia, 372 U.S. 391 (1963); and,

[ 411 Pa. Page 616]

    subsequent questions and answers clearly indicated that she did not know anything about the occurrence involved. She stated unequivocally that she could and would render a verdict based solely upon the evidence presented at trial. Defendant's own counsel was so satisfied with her answers that he accepted her without objection and stated, "The defense has no challenge." Hence, the court was not asked to rule upon a challenge for cause since none was entered and the juror was accepted without objection by both sides. Further, at the time of this juror's acceptance for service, the defense had only exercised two of the twenty peremptory challenges allowed by legislative, enactment in a case of this nature. In fact, the defendant exercised only a total of fifteen peremptory challenges before twelve members of the panel and two alternate jurors were accepted. There is not a semblance of merit to appellant's present contention. See, Commonwealth v. Pasco, 332 Pa. 439, 2 ...


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