Commonwealth ex rel. Purnell v. Banmiller

23 Pa. D. & C.2d 652, 1961 Pa. Dist. & Cnty. Dec. LEXIS 377

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: February 9, 1961
• Docket: No. 1; no. 4189
• Status: Published

Opinion

Guerin, J.,

Petitioner sought a writ of habeas corpus. A rule to show cause why his petition should not be granted was allowed, and answers were filed by respondent warden and the District Attorney of Philadelphia County. Upon hearing the petition was dismissed and the rule to show cause discharged.

On April 29, 1955, after trial by jury, petitioner was adjudged guilty of armed robbery on bill no. 960, January term, 1955, and sentenced to a term of 10 to 20 years in the Eastern State Penitentiary. In 1959, petitioner filed a petition for a writ of habeas corpus in court of Common Pleas No. 1, June term, 1959, no. 1639, raising therein exactly the same legal issues and presenting the same legal arguments as are contained in the petition now before us. In disposing of the above matter, Judge Gerald A. Gleeson, in an opinion dated September 18, 1959, concluded as follows: “The petition for a writ of habeas corpus is denied. The rule is discharged.” No appeal was taken.

It is well established that “A petition for a writ of habeas corpus which is repetitious of a previous petition should be dismissed, for a second petition cannot be employed as a device to secure subsequent appellate review of adjudicated matters from which a timely appeal could have been taken.” Cases cited: Commonwealth ex rel. Young v. Day, 180 Pa. Superior Ct. 276, 279. See also Commonwealth ex rel. rel. Huber v. Myers, 187 Pa. Superior Ct. 553, 555.

For the above reason, the petition was dismissed and the rule to show cause discharged.