
    Commonwealth ex rel. Fletcher, Appellant, v. Toothman.
    
      Argued March 16, 1962.
    April 17, 1962:
    Before Bell, C. J., Musmanno, Jones, Cohen, Eagen and O’Brien, JJ.
    
      A. J. Waychoff, for appellant.
    
      Glenn R. Toothman, District Attorney, for appellee.
   Opinion by

Mr. Chief Justice Bell,

Appellant Fletcher was convicted of First Degree Murder in the Court of Oyer and Terminer of Greene County, on December 23, 1954, aud thereafter was sentenced to life imprisonment on February 14, 1956. The conviction was affirmed by this Court. Certiorari was refused by the United States Supreme Court. Subsequently, under an Order of the Court of Oyer and Terminer of Greene County, dated July 16, 1957, certain items of evidence used in defendant’s trial were ordered to be destroyed. All items were destroyed as listed in the Order, except the shotgun.

Thereafter, the United States Court of Appeals for the Third Circuit — on appeal from the decision of the United States District Court for the Western District of Pennsylvania — reversed the District Court which had refused a writ of habeas corpus, and ordered the wñt to issue, or a new trial be granted. The Court in Greene County, upon petition of the District Attorney, thereupon ordered a new trial.

Fletcher thereafter filed a series of petitions for a writ of habeas corpus. These petitions asked for his absolute discharge and the quashing of the murder indictment on the ground that the Commonwealth does not have all of the evidence to present in the retrial of his case that it had in the original trial. It has not been shown that the elimination or absence of part of the Commonwealth’s evidence would prejudice defendant; on the contrary, it appears that it will, if it has any relevancy, weaken the Commonwealth’s case in the new trial. The lower Court entered two Orders dismissing the writ of habeas corpus and from those Orders defendant took these appeals.

Under all the facts and circumstances we find no merit in appellant’s petitions.

Orders affirmed.  