Commonwealth ex rel. Nibbio v. Johnston

16 Pa. D. & C.2d 252, 1958 Pa. Dist. & Cnty. Dec. LEXIS 169

Opinion

Milner, J.,

— The within petition came on before Milner, J., in the court of quarter sessions on August 15, 1958, pursuant to our rule of civil procedure no. 991. Relator was convicted of sodomy by a jury on November 27,1957, and on December 16, 1957, he was sentenced by President Judge Bok to a term of not less than two nor more than five years in the Eastern State Penitentiary. He was represented by Herman I. Pollock, Esq., the voluntary defender. His present petition relates to alleged trial errors involving the competency and credibility of witnesses who appeared against him, all of which are matters which should have been raised on appeal. The writ of habeas corpus may not be used as a substitute for appeal : Commonwealth ex rel. Lewis v. Tees, 177 Pa. Superior Ct. 132 (1955) ; Commonwealth ex rel. Franell v. Ashe, 134 Pa. Superior Ct. 96 (1939). For this reason the petition was dismissed without hearing.