Commonwealth ex rel. Bouknight v. Myers

Opinion by Watkins, J., This is an appeal from the order of President Judge Carroll, of the Court of Common Pleas No. 5 of Philadelphia County, dismissing, without a hearing, a writ of habeas corpus. The petitioner, Patrick Bouknight, was indicted for aggravated robbery, conspiracy, assault and battery and aggravated assault and battery, respectively. He waived a jury trial and was tried and found guilty before Judge MacElree, sitting specially, on October 8, 1959. He was sentenced on the robbery bill for a period of four to eight years, plus a fine of $500 and costs. Sentence was suspended on the other bills. He did not take an appeal from the judgment of sentence but filed this petition for writ of habeas corpus on August 1, 1960. The allegations contained in the petition attacked the sufficiency of the evidence upon which the convic [408] tions were based; raised questions of the credibility of certain-witnesses; and complained of the use, by the court below, of Ms prior criminal record to determine the penalty. “The matters complained of herein are such as are renewable only on appeal. Petitioner cannot, therefore, now avail himself of habeas corpus as a remedy since the writ may not be used as a substitute for an appeal.” Com. ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A. 2d 333 (1960). As to the complaint concerning the use of his prior criminal record by the trial court in determining sentence, it is unnecessary to comment further than to say it is manifestly without merit. Order affirmed.