Opinion
September 11, 1961.
November 16, 1961.
Criminal Law — Practice — Habeas corpus — Correction of trial errors — Plea of guilty — Alleged facetious remarks of trial judge — Evidence of defendant's prior criminal record — Sentence — Alleged perjured evidence — Trial improperly conducted by counsel.
1. In a habeas corpus proceeding, in which it appeared that relator had pleaded guilty to indictments charging him with aggravated robbery, relator's contention that he was deprived of due process of law because the trial judge, prior to passing sentence, made facetious remarks which were unfair and showed prejudice, was Held to be without merit.
2. Habeas corpus is not available to correct trial errors which could have been reviewed and corrected on appeal.
3. The fact that the trial court received testimony concerning the prior criminal record of a defendant who had pleaded guilty, if error at all, is a matter that can be attacked only on appeal.
4. Where a defendant pleads guilty, testimony concerning his prior criminal record may be received by the court in the exercise of its discretion in passing sentence.
5. An attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus.
6. The mere fact that a prisoner, after conviction, is of the opinion that the trial was improperly conducted by his counsel constitutes no ground for issuance of a writ of habeas corpus.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 137, Oct. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1960, No. 1204, in case of Commonwealth ex rel. Jessie Gouch v. David N. Myers, Superintendent. Order affirmed.
Habeas corpus.
Order entered denying petition, opinion by ULLMAN, J. Relator appealed.
Jessie Gouch, appellant, in propria persona.
Edward Reif, Patrick F. Casey, and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Submitted September 11, 1961.
This is an appeal by relator from an order of the Court of Common Pleas of Philadelphia County denying his petition for a writ of habeas corpus.
Appellant was tried on November 13, 1958, on a number of bills of indictment. On November 14, 1958, sentence was imposed only on bills Nos. 1351 and 1354, each charging him with aggravated robbery. Represented by counsel, he pleaded guilty to these two bills, and was sentenced on each for a period of not less than five years nor more than ten years. The sentences were to run concurrently, and were to be served in the Eastern State Penitentiary. He was subsequently transferred to the State Correctional Institution at Graterford.
Appellant contends that he was deprived of due process of law because (1) the trial judge, prior to passing sentence, made facetious remarks which were unfair and showed prejudice; (2) the court improperly allowed into evidence the appellant's past criminal record; (3) the appellant was convicted by perjured testimony; and (4) the appellant was tricked into pleading guilty.
It is apparent that appellant is attempting to use the writ of habeas corpus as a substitute for an appeal. Habeas corpus is not available to correct trial errors which could have been reviewed and corrected on appeal. Com. ex rel. Sharpe v. Burke, 174 Pa. Super. 350, 354, 101 A.2d 397.
Moreover, a review of the testimony indicates that the remarks made by the trial judge were not prejudicial to appellant. While sentencing a codefendant, the judge asked, for the purpose of identification: "He was the fellow who did all the dealing with Gouch, wasn't he?" And when the judge asked that appellant, after his plea of guilty, be brought before him for sentencing, the trial judge said: "All right, now, let's bring up Mr. Gouch. Gouch is the finance man. He is the financier." None of the remarks made by the trial judge could be deemed prejudicial error. They were advanced in identifying the part which appellant played with the three codefendants in the robbery ring in order that he might have before him all the circumstances to determine the sentence to be imposed. Further, appellant, on the advice of counsel, pleaded guilty to these bills, and in doing so admitted all the facts pleaded in the indictment. Com. ex rel. Bruce v. Tees, 177 Pa. Super. 63, 65, 110 A.2d 838.
Appellant's contention that the court erred in receiving testimony concerning his prior criminal record is likewise of no avail. It is a matter that could be attacked only on appeal, if it were error at all. Com. ex rel. Yeschenko v. Keenan, 179 Pa. Super. 145, 150, 115 A.2d 386. Furthermore, since appellant pleaded guilty it could be received by the court in the exercise of its discretion in passing sentence. Com. ex rel. Yeschenko v. Keenan, supra, 179 Pa. Super. 145, 150, 115 A.2d 386.
Appellant's third contention is equally without merit. An attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus. Com. ex rel. Ruger v. Day, 176 Pa. Super. 479, 483, 108 A.2d 818. In any event, the alleged perjured statements of the codefendants were not material to appellant's conviction. His conviction was based on his plea of guilty, which plea was entered on the advice of his counsel. Com. ex rel. Yeschenko v. Keenan, supra, 179 Pa. Super. 145, 115 A.2d 386.
Appellant's final contention cannot be sustained. The mere fact that a prisoner, after conviction, is of the opinion that the trial was improperly conducted by his counsel constitutes no ground for issuance of a writ of habeas corpus. Com. ex rel. Schenck v. Banmiller, 190 Pa. Super. 467, 469, 470, 154 A.2d 320. Appellant's counsel was experienced. Appellant did not object to or question this representation prior to trial. There is nothing in the record to show or prove that he was tricked or coerced into pleading guilty.
The order is affirmed.