180 Pa. Super. 174 | Pa. Super. Ct. | 1956
Opinion
This is an appeal from the order of the Court of Common Pleas No. 2 of Philadelphia County dismissing relator’s petition for writ of habeas corpus.
Relator was convicted, inter alia, of armed robbery and sentenced to a term of not less than ten years nor more than twenty years in the Eastern State Penitentiary to be computed from February 1Ó, 1954. No appeal was taken from the judgment of sentence and no motion for new trial was presented to the trial court.
It is the contention of relator that there was a variance between the bill of indictment and the proofs at trial, which constituted a denial of due process. The alleged variance is that the person robbed was not Joseph Mastronardo, but one George Grimes.
The indictment at No. 1247, February Sessions, 1954, charged relator and another with assaulting, with intent to rob, and with robbing one Joseph Mastronardo of the sum of $3.50.
There is no merit in relator’s contention. Besides, the sufficiency of the evidence, upon which the conviction was based, cannot, be-raised ..on habeas corpus. Moreover, the proofs at the trial are not inconsistent with the allegations of the bill of indictment.
As was said by the court below in its opinion: “The evidence was that the defendant with two others, armed with guns, entered the place of business of Lucy C. Mastronardo, wife of Joseph Mastronardo, and took from the table $3,50 which had just been laid down by George Grimes to pay for some beer. While the
No factual questions are involved. Relator is merely attempting, on this appeal, to present an alleged trial error to this Court; habeas corpus cannot be used for such purpose.
We find no ingredient of unfairness in any of the proceedings leading to relator’s conviction and sentence.
Order of the court below is affirmed.