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COMMONWEALTH EX REL. BUDD v. MARONEY (07/06/65)

decided: July 6, 1965.

COMMONWEALTH EX REL. BUDD, APPELLANT,
v.
MARONEY



Appeal from order of Court of Common Pleas of Butler County, Feb. T., 1963, No. 6, in case of Commonwealth ex rel. Russell Budd v. James F. Maroney, Superintendent.

COUNSEL

Russell Budd, appellant, in propria persona.

Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for appellee.

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

Author: O'brien

[ 418 Pa. Page 455]

On February 25, 1953, Alice G. Storch was murdered in her home in Cranberry Township, Butler County. The Commonwealth contended that her husband, Ernest E. Storch, had hired the assassins. Russell Budd and Walter Henderson were charged with the crime as the actual assailants.

Storch was convicted on two counts of accessory before the fact to murder. Henderson entered a general plea to the charge of murder and after the taking of testimony, the court fixed the degree of murder as murder in the first degree and sentenced him to life imprisonment.

Russell Budd, the appellant in this appeal from the denial of his petition for a writ of habeas corpus, stood

[ 418 Pa. Page 456]

    trial before a court and jury. He was represented by counsel and was found guilty of murder in the first degree and the penalty was fixed at life imprisonment.

Budd now files a petition for a writ of habeas corpus, alleging that Henderson, who testified against him, perjured himself and that he has now signed an affidavit swearing that the testimony he gave at Budd's trial was false. The petitioner has attached a copy of that affidavit to his petition. The petitioner also raises other issues in his petition. These issues, however, even if proved, are not the grounds for a writ of habeas corpus but are matters which should have been raised on appeal. The writ on these matters is not a substitute for an appeal. Com. ex rel. Light v. Maroney, 413 Pa. 254, 196 A.2d 659 (1964).

The issue of a conviction based upon perjured testimony which relator alleges was introduced by the district attorney with knowledge of the perjury, is, however, an allegation which, if proved, would be grounds for the granting of the writ. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959).

It is conceded that the recanting of testimony by a co-conspirator after conviction is evidence of the lowest credibility. However, it would appear that a hearing should have been held to determine the validity of the petitioner's charge. In the instant case, the petitioner was brought before the court when the petitioner sought leave to file his petition in forma pauperis. At ...


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