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COMMONWEALTH EX REL. ROBINSON v. MYERS (01/04/66)

decided: January 4, 1966.

COMMONWEALTH EX REL. ROBINSON, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of York County, Aug. T., 1964, No. 372, in case of Commonwealth ex rel. Harvey Robinson v. David N. Myers, Superintendent.

COUNSEL

Harvey Robinson, 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, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 420 Pa. Page 73]

In December 1962, appellant, Harvey Robinson, was arrested in the City of York, Pennsylvania, in connection with the slaying of Marlene Perez. He was subsequently indicted and charged with her murder.

Because of his indigency, Robinson secured court appointed counsel to represent him and entered a plea of not guilty. Brought to trial in May 1963 in the Court of Quarter Sessions of York County, he was convicted of voluntary manslaughter and sentenced to imprisonment for a term of 6 to 12 years. No post trial motions were filed and no appeal was taken from the judgment of sentence.

Subsequently, Robinson challenged his conviction collaterally by a petition for a writ of habeas corpus in the court below. His petition was dismissed without a hearing and this appeal followed.

In his petition for habeas corpus, Robinson alleged a number of trial errors which the court below refused

[ 420 Pa. Page 74]

    to entertain.*fn1 In so doing, the court acted properly. Collateral relief may only be predicated on fundamental or constitutional error and habeas corpus may not be employed in lieu of appeal to correct ordinary trial error.*fn2 However, as we read Robinson's petition, one contention, not adverted to by the court below, and, presumably, not considered, was of constitutional dimension and thus cognizable on habeas corpus. By failing to treat and dispose of this issue, the court below erred and its order must be vacated and the case remanded for further consideration.

In seeking relief, Robinson asserts that trial counsel, at the conclusion of the case, declined to undertake an appeal. He further asserts that, while imprisoned, he was without funds or knowledge to perfect an appeal absent such assistance. Thus, Robinson contends, although entitled to appellate review as of right,*fn3 the refusal of his appointed ...


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