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COMMONWEALTH EX REL. HARBOLD v. MYERS (03/16/65)

decided: March 16, 1965.

COMMONWEALTH EX REL. HARBOLD, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of York County, Aug. T., 1964, No. 144, in case of Commonwealth ex rel. James W. Harbold v. David N. Myers, Superintendent.

COUNSEL

James W. Harbold, appellant, in propria persona.

Lewis H. Markowitz, Earl R. Doll, Nevin J. Trout and Elmer M. Morris, Assistant District Attorneys, John T. Miller, First Assistant District Attorney, and Daniel W. Shoemaker, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 417 Pa. Page 360]

Appellant petitioned for a writ of habeas corpus which would release him from imprisonment. Appellant-petitioner is serving a life sentence imposed in 1962 after a jury returned a verdict of murder in the first degree. At the jury trial, two court-appointed counsel conducted petitioner's defense.

Following the verdict, counsel for petitioner filed motions for a new trial and in arrest of judgment.*fn1 Before the trial court passed on these motions, however, the petitioner himself wrote to the trial judge requesting that the post-trial motions be withdrawn and that sentence be imposed.*fn2 Informed of this development, petitioner's counsel consulted with him and discussed the consequences of withdrawing the motions. Shortly thereafter petitioner was brought before the court and sentenced.*fn3

In June of 1964, petitioner filed his petition for a writ of habeas corpus. The petition alleged, in reality, six grounds in support of the requested relief.*fn4 Three of these grounds were identical with those explicitly raised in the 1962 post-trial motions.*fn5 Two assignments

[ 417 Pa. Page 361]

    related to matters objected to during trial and, although not specifically set out, apparently were incorporated into the post-trial motions.*fn6 The sixth allegation in the habeas corpus petition concerned a matter not previously raised.*fn7 A three judge court en banc carefully scrutinized the petition for a writ of habeas corpus. In an extensive opinion, after discussing each of the petition's allegations, the court unanimously denied the petition. Because the court deemed the petition to be clearly without merit, no hearing was held. We agree that the petition should be denied.

Although we agree with the conclusions of the court below, we believe there is a further ground on which

[ 417 Pa. Page 362]

    the denial should be predicated. Upon review of this record, we conclude that petitioner waived his right to collaterally attack the validity of his conviction in the state court by deliberately by-passing the orderly ...


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