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COMMONWEALTH EX REL. WILSON v. RUNDLE. (10/09/63)

October 9, 1963

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



Appeal, No. 163, Jan. T., 1963, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1962, No. 1717, in case of Commonwealth ex rel. Raymond P. Wilson v. Albert T. Rundle, Warden. Order affirmed.

COUNSEL

Raymond P. Wilson, appellant, in propria persona.

Burton Satzberg and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

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

Author: Jones

[ 412 Pa. Page 110]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

[ 412 Pa. Page 111]

Raymond P. Wilson - now serving a life sentence after conviction of a felony murder*fn1 - filed in the Court of Common Pleas of Philadelphia County a habeas corpus petition which that court dismissed without a hearing.

On this appeal, at the outset, Wilson claims that he was entitled to a hearing on his petition and an opportunity to present allegedly material facts in support thereof and that the court's refusal of his petition without a hearing constitutes error. In a habeas corpus proceeding, where no material or substantial questions of fact are involved and where the questions presented are questions of law, no hearing for the taking of testimony is necessary: Commonwealth ex rel. Davis v. Banmiller, 192 Pa. Superior Ct. 130, 159 A.2d 770. See: Commonwealth ex rel. Dickerson v. Rundle, 411 Pa. 651, 192 A.2d 347; Commonwealth ex rel. Butler v. Rundle, 407 Pa. 535, 180 A.2d 923.

In his petition, Wilson raises, in substance, four questions: (a) that a Commonwealth witness at Wilson's trial has repudiated his testimony; (b) that at trial the district attorney made a prejudicial misstatement to the jury; (c) that certain hearsay evidence was admitted at the trial; (d) that certain evidence received at the trial - United States currency - was obtained through an unreasonable search and seizure and, therefore, under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, such evidence should have been excluded. Since the Commonwealth concedes the fact that the Commonwealth witness Nixon has now repudiated his testimony, question (a) presents no issue of fact; since the Commonwealth admits both the making, and the inaccuracy, of the district attorney's statement, likewise, question (b) raises no question of fact; question (c) is patently a question of law; if Mapp, supra, is

[ 412 Pa. Page 112]

    inapplicable to the case at bar - that being purely a legal question - , question (d) raises no issue of fact. Under these circumstances, Wilson was not entitled to a hearing on his petition and the court below correctly so held.

We accept as an established fact Wilson's averment that the Commonwealth witness Nixon has now repudiated his trial testimony. At trial Nixon testified as to certain admissions, allegedly, made to him by Wilson concerning the murder while Wilson and Nixon were cellmates in a Las Vegas jail. In corroboration of this testimony, the court admitted into evidence certain consonant statements, allegedly, made by Nixon to federal investigators as well as evidence that Nixon displayed to a federal agent a $400 money order which, allegedly, Wilson had procured from Mrs. Ellsworth, wife of one of Wilson's co-conspirators, and which was given to Nixon to secure bail so that, on his release, Nixon could go to Florida and arrange an alibi defense for Wilson in connection with the crime for which Wilson was then held. Wilson now contends that "the trial court permitted the admission [into evidence] of deliberately fabricated testimony" of Nixon. As background for the evaluation of this charge, we refer to that which we said in Commonwealth v. Wilson, supra (pp. 604, 605): "The trial judge stated: 'If the guilt or innocence of [Wilson] were to be determined alone upon the uncorroborated testimony of [Nixon] I should be directing you [the jury] to return a verdict of not guilty.' It is hard to envisage a more fair, outspoken and favorable comment for the defense than this expression of the trial judge's opinion concerning Nixon's testimony. Furthermore, the trial court told the jury that Nixon was a 'convicted felon, presently serving a sentence in a Georgia Prison,' that the examination 'has brought out a number of offenses for which he was convicted and the

[ 412 Pa. Page 113]

    number of escapes from prisons and penitentiaries. All in all, it is the story of one whose life has been badly misspent.' Nixon's testimony was characterized by the trial judge as 'tainted, corrupt and entitled to little weight' and the jury was warned to scrutinize such testimony 'with the greatest care.'" In addition, the trial judge warned the jury that ...


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