Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 2980, in case of Commonwealth ex rel. Robert Davis v. James F. Maroney, Superintendent.
H. David Rothman, with him K. Leroy Irvis, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Concurring Opinion by Hoffman, J.
[ 206 Pa. Super. Page 70]
In October, 1960, relator was tried under nine indictments charging burglary and either rape or assault with intent to ravish. The offenses all took place in the same area of Pittsburgh in which relator resided, all were between 4 and 6 a.m. and eight of the nine took place within the seven week period prior to relator's arrest. At trial relator was represented by a member of the Bar of Allegheny County appointed by the court. Counsel was also a member of the Legal Aid Society. The jury, after three days of trial, found relator guilty on all nine indictments. He was sentenced to an aggregate term of imprisonment of 40 to 80 years. In November, 1964, his petition for writ of habeas corpus was denied without hearing. This appeal followed.
In his argument relator seeks the writ on three basic grounds: (1) Ineffective assistance of counsel; (2) "fundamental error" in trying nine felony indictments in one trial; and (3) "fundamental error" in the failure of the court to give a cautionary instruction on the issue of identification testimony.
[ 206 Pa. Super. Page 71]
We find no error in the denial of the writ without a hearing.
From the numerous habeas corpus cases recently decided by this court and the Supreme Court of Pennsylvania certain principles have clearly emerged. One is that a hearing on a habeas corpus petition is not necessary where the petition or the record or both fail to make out a case or where no factual issues require determination. Commonwealth ex rel. Simcox v. Johnston, 182 Pa. Superior Ct. 407, cert. denied 355 U.S. 933; Commonwealth ex rel. Whalen v. Banmiller, 193 Pa. Superior Ct. 554; Commonwealth ex rel. Holben v. Russell, 418 Pa. 22. In this case, a hearing would serve no useful purpose since relator's contentions can all be decided by reading the record. Another well-established principle is that the writ of habeas corpus is not a substitute for an appeal. Commonwealth ex rel. Wilkins v. Banmiller, 401 Pa. 347; Commonwealth ex rel. Kennedy v. Myers, 393 Pa. 535. When a judgment of conviction is collaterally attacked in a habeas corpus proceeding, the relator must clearly establish that due process was denied. Commonwealth ex rel. Storch v. Maroney, 416 Pa. 55. Guided by these principles, we will consider each of relator's allegations.
First is his contention that his trial counsel was so ineffective as to amount to a violation of his constitutional right to counsel. Six arguments are advanced in support of this contention. Two of these, failure to request a severance and failure to request a cautionary charge on identification testimony, are the basis of relator's other two contentions and will be discussed later in the opinion. The other four are: ignorance of the facts and lack of preparation, refusal to let relator testify, failure to exercise challenges on voir dire, and failure to move to withdraw a juror when the prosecuting
[ 206 Pa. Super. Page 72]
attorney allegedly made some berating remarks about the ...