WASHINGTON
v.
WARDEN OF MARYLAND HOUSE OF CORRECTION
[P.C. No. 88, September Term, 1959.]
Court of Appeals of Maryland.
Decided May 20, 1960.Before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
PRESCOTT, J., delivered the opinion of the Court.
This is an application for leave to appeal under the PCPA.
The petition was denied by Judge Marbury in Circuit *625 Court for Prince George's County after counsel was appointed for the applicant and a hearing held upon the petition.
The applicant was indicted on a charge of robbery with a deadly weapon. He was tried before Judge Gray and a jury and was found guilty as charged. On April 30, 1958, he was sentenced to ten years in the Maryland Penitentiary. The applicant in his present petition contends that on April 18 (the date that the indictment was returned) he was not identified as being one of the three men who were supposed to have robbed the prosecuting witness. He contends that this failure to identify him on April 18 should have exonerated him from the charge of robbery and that instead of exonerating him the trial date was set for April 30, 1958. He admits that at the trial the prosecuting witness identified him as one of those who robbed the prosecuting witness, but now contends that the witness committed perjury. He further contends that he was not given sufficient time to secure witnesses in his defense, and that he should have been present at the hearing on his petition.
The identification of the applicant goes to the sufficiency of the evidence and cannot be considered under the PCPA. Price v. Warden, 220 Md. 643, 151 A.2d 166; Barbee v. Warden, 220 Md. 647, 151 A.2d 167. It will be noted, however, that he admits the identification was made at the trial even though he claims (or when the indictment was filed his petition fails to make his contention clear) he was not identified.
The contention that there was a denial of the right to produce a witness or witnesses even if true cannot be raised in a collateral proceeding such as under the PCPA. Ellis v. Warden, 218 Md. 631, 145 A.2d 225.
Whether or not the applicant should be present at the hearing of his petition under the PCPA is a matter that rests in the sound discretion of the trial judge. Plump v. Warden, 220 Md. 662, 153 A.2d 269. No showing is here made of any abuse of that discretion.
Application denied.