
    Commonwealth ex rel. Willis v. Myers
    
      William F. Willis, p. p., relator.
    
      Thomas Shiomos, Assistant District Attorney, for respondent.
    
      February 15, 1963.
   Chudoff, J.,

On November 2, 1961, William F. Willis, hereinafter referred to as petitioner, along with one other defendant, was tried and convicted in the court of quarter sessions on four bills of indictment, nos. 1836-39, inclusive, June sessions, 1961, charging aggravated robbery, aggravated assault and battery, assault and battery, receiving stolen goods, and conspiracy. The sentence imposed upon petitioner was for a term of imprisonment at the Eastern State Correctional Institution at Philadelphia for not less than three or more than ten years.

On August 27, 1962, petitioner applied for a writ of habeas corpus in the Court of Common Pleas No. 4 of Philadelphia County, from his conviction, alleging that his trial was so permeated with trial errors that collectively these errors constituted fundamental error amounting to a denial of due process of law.

We dismissed the petition for writ of habeas corpus on September 18, 1962, after carefully reviewing the petition and without hearing any evidence.

Petitioner’s arguments relate to the insufficiency of the 'Commonwealth’s evidence and to certain errors alleged to have been committed during the course of the trial.

In Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 137 A. 2d 236, the Supreme Court, speaking through Chief Justice Jones, said at page 144:

“The remedy for trial error is by motion for new trial followed, if necessary, by an appeal. We, as well as the Superior Court, have frequently recognized that a habeas corpus petition is not available for the correction of trial errors which could have been reviewed and corrected on appeal; it is not a substitute for an appeal or for a writ of error or for a motion for a new trial: . . . Commonwealth ex rel. Ketter v. Day, 181 Pa. Superior Ct. 271, 273, 124 A. 2d 163; Commonwealth ex rel. Jones v. Day, 181 Pa. Superior Ct. 37, 39, 121 A. 2d 896; Commonwealth ex rel. Ruger v. Day, 176 Pa. Superior Ct. 479, 482, 108 A. 2d 818; Commonwealth ex rel. Cobb v. Burke, 176 Pa. Superior Ct. 60, 63, 107 A. 2d 208; Commonwealth ex rel. Sharpe v. Burke, 174 Pa. Superior Ct. 350, 354, 101 A. 2d 397 ??

However, where the record shows a trial or sentence which was so fundamentally unfair as to amount to a denial of due process, or that some basic fundamental error was committed which deprived defendant of one of his constitutional rights, relief may be sought by habeas corpus: Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A. 2d 587; Commonwealth ex rel. Herman v. Claudy, 350 U. S. 116, 118; Palmer v. Ashe, 342 U. S. 134. As to what constitutes denial or violation of due process of law, see Townsend v. Burke, 344 U. S. 736; United States ex rel. Smith v. Baldi, 344 U. S. 561; Brown v. Allen, 344 U. S. 443; Speller v. Allen, 344 U. S. 443; Daniels v. Allen, 344 U. S. 443; Watts v. Indiana, 338 U. S. 49; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; Chambers v. Florida, 309 U. S. 227; Commonwealth ex rel. Sheeler v. Burke, 367 Pa. 152, 79 A. 2d 654; Powell v. Alabama, 287 U. S. 45.

Under either or both of the aforesaid tests, there is no merit in petitioner’s petition.

The principal and real questions which petitioner is now raising in this habeas corpus proceeding were raised by him and were passed upon by the court sitting as a jury, adversely to him after hearing conflicting evidence. The present petition is an attempt to reopen the same questions of fact which were resolved against petitioner by the jury at his trial, and the evidence sought to be introduced in support of petitioner is similar in kind to that presented at the trial. It has been repeatedly held that the writ of habeas corpus cannot be used to reexamine matters of fact that were passed on by the jury at the trial: Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A. 2d 904.

If the law were otherwise, there would be no finality of any conviction or sentence because the person who is convicted and sentenced could file repeated petitions for a writ of habeas corpus, raising in almost identical language the very issues or matters of fact which were previously decided against him by the jury and/or by our appellate courts and demand, and re-demand, and re-re-demand the right to present testimony to substantiate his allegations. The orderly administration of-law, the protection of society, and speedy and impartial justice for all require that the validity and finality of an issue or of a sentence should not be subject to repeated attack after it has once been judicially settled.

Petitioner also raises as error failure of bis counsel to order the transcribing of the notes of testimony taken at the preliminary hearing.

The fact that a criminal, after conviction, believes his trial was not wisely conducted by his counsel furnishes no ground for the issuance of the writ of habeas corpus: Commonwealth ex rel. Norman v. Banmiller, 395 Pa. 232, 149 A. 2d 881.

In the case of Commonwealth ex rel. Haines v. Banmiller, 393 Pa. 439, 143 A. 2d 661, the Supreme Court held that allegations in relator’s petition for a writ of habeas corpus claiming he was denied, before trial, an opportunity to examine the charge, subpoena witnesses and consult counsel and prepare a defense, and was denied his right to appeal because the trial court failed to furnish him with a transcript of the nonsupport hearing, the petition was without merit and the court below properly dismissed it.

Was a hearing necessary in order to determine the factual issues raised by the petition and answer? The answer to this question is “no”, since the facts alleged are refuted by the record or were found adversely to petitioner by the jury.

In Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A. 2d 122, the court said (494-495):

“Where the petition or application itself, or where the record upon which it is based, or both together, fail to clearly make out a case entitling a relator to the relief afforded by habeas corpus, a hearing is not necessary. [citing cases] ” See also Brown v. Allen, 344 U. S. 443.

We find no trial errors which, singly or collectively, deprive defendant-petitioner of the fundamentals of a fair trial or any of his constitutional rights.

For the foregoing reasons, the petition for writ of habeas corpus was dismissed.  