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COMMONWEALTH EX REL. SMITH v. RUNDLE (10/07/66)

decided: October 7, 1966.

COMMONWEALTH EX REL. SMITH, APPELLANT,
v.
RUNDLE



Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1965, No. 2013, in case of Commonwealth ex rel. Frank Smith v. A. T. Rundle, Superintendent.

COUNSEL

Ray E. Machen, with him Bernard L. Lemisch, for appellant.

John A. McMenamin, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

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

Author: Eagen

[ 423 Pa. Page 95]

This is an appeal from an order below dismissing an action in habeas corpus without hearing.

The appellant, Frank Smith, is confined under a sentence of life imprisonment imposed on June 28, 1950, following his conviction by a jury of murder in the first degree. Throughout the trial proceedings, he was represented by self-retained counsel. A motion for a new trial was filed and later withdrawn. No appeal from the judgment was entered.

In the present action, Smith contends, that the trial resulting in his conviction and sentence lacked due process because it was basically unfair and fraught with multiple trial errors. He complains: (1) that the trial court permitted in evidence at trial police witness testimony, that during questioning Smith was confronted by alleged accomplices*fn1 who made recorded statements in his presence that they, together with Smith, committed the robbery*fn2 and that Smith failed to deny their statements; (2) that the trial judge erred in his instructions to the jury concerning the impact of Smith's failure to enter a denial on the occasion described; (3) that the trial judge erroneously prejudiced Smith's trial by permitting his accomplices (Young and Collins) to be present in court and to be identified without being called as witnesses; (4) that the trial court erred in permitting to be read at trial the recorded statements of Young and Collins made in the presence

[ 423 Pa. Page 96]

    of Smith which involved him in the crime; (5) that the trial judge erroneously permitted the prosecution to plead surprise during the testimony of a witness and to then cross-examine this witness; (6) that the trial judge erred in instructing the jury that a not guilty verdict "would be a miscarriage of justice"; and (7) that Smith was held incommunicado for eleven days by the police before being given a preliminary hearing.

It is readily apparent that Smith's complaints, in large part, involve questions that should have been raised by direct appeal and are not a proper basis for the issuance of habeas corpus. See, Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966), and Commonwealth ex rel. Rivers v. Myers, 414 Pa. 439, 200 A.2d 303, cert. denied, 379 U.S. 866 (1964). However, if the trial were basically unfair and thus violated the constitutional requirements of due process, or if any part of the proceedings involved constitutional errors, the remedy of habeas corpus is properly employed. See, Commonwealth ex rel. Robinson v. Myers, supra, and Commonwealth ex rel. Butler v. Rundle, 407 Pa. 535, 180 A.2d 923 (1962). Therefore, we have carefully examined the record in depth. We find no valid reason why the writ should issue. We will, therefore, affirm.

The Commonwealth's trial testimony established that three men committed an armed robbery of a taproom in the city of Philadelphia, and during its occurrence a patron, one William Hill, was beaten over the head with a revolver causing injury resulting in death. Testimony of two eyewitnesses unequivocally identified Smith as one of the felons. Further, Smith testified at trial and admitted participation in the robbery, but denied having a revolver or assaulting the ...


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