Opinion
Per Curiam,This is an appeal from the refusal of the court below, sitting en banc, to grant defendant a new trial under the provisions of the Act of April 22, 1903, P. L. 245, 19 PS §861, et seq.
Appellant, William S. Green, was regularly indicted, tried, and convicted of murder of the first degree in 1947, the jury fixed the penalty at life imprisonment, and the sentence on the verdict was affirmed: Commonwealth v. Green, 358 Pa. 192, 56 A. 2d 95. In 1953 a petition for allowance of a new trial was filed in this Court on the grounds of after-discovered evidence under the Act of April 22, 1903, supra, which petition was denied Per Curiam. On February 10, 1956 appellant filed another- petition in this Court under the Act of *517April 22, 1903, alleging further after-discovered evidence. This petition was granted1 and we issued an order to the Court of Oyer and Terminer of Philadelphia County authorizing it to grant a rule for new trial nunc pro tunc. The rule ivas allowed, but, after argument thereon, was discharged and new trial refused. This appeal followed. The District Attorney, representing the Commonwealth, joined in the prayer of appellant’s petition in the court below for a new trial and also joins with appellant here.
Section 2 of the Act of 1903, 19 PS §862, provides: “Upon the termination of the hearing of . . . [the rule for a new trial], if the court of oyer and terminer shall not deem the grounds sufficient it shall thereupon discharge said rule, and the proceedings shall terminate, and the judgment and sentence theretofore entered of record shall remain unaffected.”. The effect of this section is the same as though the Legislature had said in terms, “There shall be no appeal from an order discharging such a rule for new trial”: Commonwealth v. Greason, 208 Pa. 126, 57 A. 349; Commonwealth v. Cicere, 286 Pa. 296, 133 A. 795; Commonwealth v. Del Vaccio, 303 Pa. 519, 154 A. 789. The law is clear that where a statute expressly provides that there shall be no appeal, the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceeding; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the court below may have been erroneous: *518Kaufman Construction Company v. Holcomb et al., 357 Pa. 514, 55 A. 2d 534, and the many cases cited therein. It is not argued that the proceedings in the court below were in any way irregular. Appellant contends that the court below exceeded its jurisdiction in that it assumed the role of a jury in reviewing the after-discovered evidence on the issue of credibility, but a careful reading of the court’s opinion shows that it determined only that in its view, the new evidence wag insufficient to justify the granting of a new trial. Appellant also contends that since the Commonwealth joined in his petition for a new trial, the court below had jurisdiction only to determine whether appellant actually possessed the after-discovered evidence he alleged in his petition to this Court. However, the Act of 1903 specifically gives the court of oyer and terminer jurisdiction to determine whether the grounds are sufficient to justify the granting of a new trial.
It is argued that appellant has been deprived of due process of law because in refusing to grant a new trial, the court below acted in an arbitrary manner. Apart from the fact that this does not go to the court’s jurisdiction, it is clear that appellant was convicted and sentenced under due process of law. The court had jurisdiction, he was represented by competent counsel, and had a fair and impartial trial before an able and just judge. Consequently, the imprisonment under which he is held is lawful: Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 96 A. 2d 909.
The essence of appellant’s petition is that he was convicted on perjured testimony of a crime for which he has served almost ten years. Under the Act of 1903, our appellate review is severely limited. There is obviously another door open to the appellant if his further restraint is unjustified in the light of subsequent
*519developments. He may ask tbe Board of Pardons to recommend that the Governor exercise his power to grant a pardon.
The appeal is dismissed.
See Commonwealth v. Del Vaccio, 303 Pa. 519, 154 A. 789, to the effect that where an appeal taken from a conviction for murder is affirmed, and thereafter we grant a rule on the Commonwealth for new trial under the Act of 1903, and the court of oyer and terminer, after hearing the witnesses, discharges the rule, the defendant cannot file a second petition in this Court for a rule for new trial based on further after-discovered evidence.