December 12, 1963
COMMONWEALTH EX REL. CUNNINGHAM, APPELLANT,
Appeal, No. 215, Oct. T., 1963, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1963, No. 970, in case of Commonwealth ex rel. James Cunningham v. David N. Myers, Superintendent. Order affirmed.
James Cunningham, appellant, in propria persona.
Arthur J. Marion 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.
[ 202 Pa. Super. Page 169]
OPINION BY ERVIN, J.
This is an appeal from an order of the court below dismissing appellant's petition for a writ of habeas corpus, which had been filed as a writ of error coram nobis and which was accepted and acted upon by the court below as a writ of habeas corpus.
Defendant was tried and found guilty by a judge non-jury of aggravated robbery and possession of drugs. He was sentenced on the several bills, all to run consecutively, for sentence in the aggregate of a minimum of 17 years to a maximum of 35 years, which later was reduced to an aggregate sentence of not less than 12 years nor more than 25 years. His major argument is that the court should reduce and reconsider his sentence because he was convicted on faulty identification by the victims of the armed robbery.
A writ of habeas corpus may not be used to review the sufficiency of evidence: Com. ex rel. Jackson v. Day, 179 Pa. Superior Ct. 566, 118 A.2d 289; Com. ex rel. Watters v. Myers, 406 Pa. 117, 176 A.2d 448.
[ 202 Pa. Super. Page 170]
Appellant also avers that he discovered new evidence not available at the trial in the form of an alibi which would have affected the armed robbery bills and that therefore his writ of error coram nobis should have been granted. It is obvious from a reading of the record that this evidence was available to the appellant at the time of trial had he exercised diligence to discover the same. He was represented by competent counsel at the trial, who would have presented the evidence had it existed.
Appellant also complains of the action of the court below in dismissing his petition without a hearing. This was entirely proper because the court determined that the facts alleged were refuted by the record and had been found adverse to the appellant by the court sitting as a judge and jury. A petition for a writ of habeas corpus is properly dismissed without a hearing where the allegations therein are refuted by the trial record. See Com. ex rel. Watters v. Myers, supra; Com. ex rel. Willis v. Myers, 200 Pa. Superior Ct. 453, 190 A.2d 365.
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