Commonwealth Ex Rel. Garison v. Burke

Opinion by

Mr. Justice Bell,

A petition for a writ of habeas corpus was presented alleging, inter alia, that the Commonwealth’s evidence was circumstantial and failed to prove a felonious intent; that the defendant was illegally arrested; and that his Court-appointed counsel did not adequately and properly protect him.

Relator was indicted, and on January . 28, 1953, was convicted of burglary. No motion for a new trial or motion in arrest of judgment was filed. Relator was thereupon sentenced to serve a term of 2 to 4 years in the Eastern State Penitentiary. No appeal was taken from the judgment or sentence of the Court. On May 13, 1953, relator filed the present petition for a writ of habeas corpus which, after hearing, was dismissed by the Court. Relator then took an appeal to the Superior Court which unanimously affirmed the judgment and sentence of the lower Court. An allocatur was allowed by a member of this Court.

In Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A. 2d 593, we said: “The extraordinary remedy of habeas corpus which can be successfully invoked only in exceptional cases, is not a substitute for a motion for new trial or for an appeal or for a writ of error: [Citing numerous cases]; and we strongly deprecate the present practice to use it as such.

“It is well settled that a relator cannot obtain relief by habeas corpus for errors alleged to have occurred in the course of his trial: [Citing numerous cases].

“. . . the great weight of authority holds that the question of the sufficiency or insufficiency of the evidence to sustain a conviction cannot be raised by habeas corpus: [Citing cases and text authorities].”

In spite of the fact that decisions of the Supreme Court of the United States were in complete accord with and fully sustained the principles asserted in Commomwealth ex rel. Marelia v. Burke, 366 Pa., supra, nevertheless, as Mr. Justice Jackson said in his concurring opinion in Brown v. Allen, Warden, 344 U. S. 443, 540 (decided February 9, 1953) : “Once upon a time the writ could not be substituted for appeal or other reviewing process but challenged only the legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner’s habeas corpus are substantially the same as would be considered on appeal.”

We took cognizance of this trend when we said in Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 493, 96 A. 2d 122: “The cases are legion in which this Court has said that a writ of habeas corpus is not a substitute for an appeal or for a writ of error or for a motion for a new trial or for the correction of trial errors: Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 75 A. 2d 593; Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 71 A. 2d 107; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A. 2d 1. On the other hand, the recent tendency of Courts, especially the Supreme Court of the United States, has been to relax this general rule and to widen the scope of due process and allow a writ of habeas corpus when the interests of justice imperatively require it. See particularly Townsend v. Burke, Warden, 334 U. S. 736 and the recent United States Supreme Court cases of U. S. ex rel. Smith v. Baldi, 344 U. S. 561; Brown v. Allen, Warden, 344 U. S. 443; Speller v. Allen, Warden, 344 U. S. 443; and Daniels v. Allen, Warden, 344 U. S. 443.”

Assuming, without deciding, that the matters raised by this relator can be raised on a petition for a writ of habeas corpus, there is no merit to the petition. The Commonwealth’s evidence at the trial clearly proved that a man, in the early morning hours of December 20, 1952, broke a window in a second floor bedroom and entered the room occupied by Frank Marks, aged 13, a son of Mr. and Mrs. Marks. Mrs. Marks was awakened by the noise, opened the bedroom door and faced and stared at the intruder who was 10 to 15 feet away. She yelled to her husband; the intruder then slammed the door shut, dove head first through the window which he had previously broken and opened; ran across a small shed roof and jumped from the roof to the ground.

Friends and neighbors conducted a search and approximately two hours later the relator was apprehended on a bridge that crosses the Neshaminy Creek a few hundred feet from the Marks home. Relator’s clothes were wet and he was limping. He was taken to the Marks home where Mrs. Marks positively identified him as the intruder. Relator did not live in the neighborhood, but testified that while the search was being conducted he was (innocently) sitting on some steps almost directly across the street from the Marks home.

Relator contends that no felonious intent was shown and therefore he is entitled to be discharged. There is no merit in this contention. Two hours after the burglary, and at the trial, Mrs. Marks positively and repeatedly identified the intruder whom she saw in the hall as the (defendant or) relator. Intent may be inferred from actions as well as words: Commonwealth v. Ellis, 349 Pa. 402, 404, 37 A. 2d 504. It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of .such- a nature-. as to prove defendant’s guilt beyond a reasonable doubt: Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A. 2d 733; Commonwealth v. Dans, 211 Pa. 507, 60 A. 1070; Commonwealth v. Wentsel, 360 Pa. 137, 61 A. 2d 309.

Relator next contends that he was beaten and mistreated by the Marks’ and their neighbors when he was caught and that that is ground for his discharge on a writ of habeas corpus. The witnesses for the Commonwealth denied any beating or mistreatment. However, even if relator’s contention had been supported by competent and adequate proof, a private citizen may arrest a felon without a warrant where (1) a felony has actually been committed and (2) he has reasonable grounds to suspect that the person he arrests committed the felony: Sadler Criminal Procedure in Pennsylvania, §89; Maurer’s Notes on Criminal Law, §300; 4 Am. Jur. §22, page 16; Restatement, Torts, §119; Brooks v. Commonwealth, 61 Pa. 352. Cf. Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 71 A. 2d 799; Commonwealth ex rel. Schuch v. Burke, 174 Pa. Superior Ct. 137, 100 A. 2d 122.

An illegal arrest, even if excessive force were used, does not, without more, amount to a denial of due process or furnish grounds, after conviction, for discharge on a writ of habeas corpus: Commonwealth ex rel. Grierson v. Ashe, 353 Pa. 1, 44 A. 2d 239, Certiorari denied, 327 U. S. 790; Commonwealth ex rel. Spencer v. Ashe, 364 Pa., supra; Commonwealth ex rel. Burge v. Ashe, 168 Pa. Superior Ct. 271, 77 A. 2d 725; Commonwealth ex rel. Chambers v. Claudy, 171 Pa. Superior Ct. 115, 90. A. 2d 383.

Relator’s contention- that his Court-appointed counsel did not wisely eross-exainine the Commonwealth’s witnesses and adequately represent. his: interests is likewise without merit, even if the present proceeding he considered in the nature of an appeal. Such a contention or accusation is becoming more and more frequent. Losing counsel is ofttimes blamed by succeeding counsel who, with the benefit of hindsight, is convinced that he could have more ably conducted the defense with the result that defendant would have been acquitted. If such contentions were to prevail a new trial would have to be granted in nearly every case where a man was convicted of crime, and there would be no finality to any criminal trial.

The Order dismissing the Petition for the Writ of Habeas Corpus is affirmed.

Mr. Justice Jones concurs in the result.