Opposition — Cain v. Mazurkiewicz

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

IN THE LRICHABL RODAK, JR. CLERK |

SUPREME COURT OF THE UNITED STATES

TERM, 1978

NO. 78-907

GERALD R, CAIN,

: PETITIONER

JOSEPH MAZURKIEW! CZ

AND

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

AND

DISTRICT ATTORNEY OF PHILADELPHIA CQUIITY,

ESPONDENTS

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

pLEVEn H, GOLDBLATT

EPUTY DISTRICT ATTORNEY FOR LAW

PAUL S, DIAMOND

Assistant District ATTORNEY

MICHAEL. F, HENR

CHIEF, MOTIONS oe

FDWARD G, RENDELL

ISTRICT ATTORNEY

2400 Centre Square WEST

PHILADELPHIA, PENNSYLVANIA 19102

INDEX

CouNTER-STATEMENT OF THE ISSUES PRESENTED

CouNTER-STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

1, PETITIONER WAS NWOT ENTITLED, AS A MATTER OF CON-

STITUTIONAL LAW, TO A JURY CHARGE ON VOLUNTARY

MANSLAUGHTER ABSENT EVIDENCE OF PROVOCATION,

2. THE THIRD CIRCUIT PROPERLY DENIED PETITIONER

RETROACTIVE BENEFIT OF A WEW CONSTITUTIONAL

HOLDING AS THAT HOLDING UID NOT AFFECT THE

TRUTH DETERMINING PROCESS IN PETITIONER'S

MURDER TRIAL,

CONCLUSION

3-11

11-19

FEDERAL CASES

Apams Vv, Ittinois, 405 U.S, 278 (1972)

Acpripce v, Unitep States, 283 U.S, 308 (1931)

ALMEIDA-SANCHEZ V, Unrtep States, 413 U.S, 266 (1973)

ArSENAULT Vv, MassacHuseTTS, 393 U.S, 5 (1963)

BARBER V, Pace, 390 U.S, 719 (1968)

BeLTon Vv, United States, 382 F,2p 150 (D.C, Cir, 1967)

BERGER V, CALIFORNIA, 383 U,S, 314 (1968)

Berra V, United States, 351 U.S. 131 (1956)

Brown v, UNITED States, 422 U.S, 916 (1975)

Bruton Vv, United States, 391 U.S, 123 (1968)

CHAPMAN V, CALIFORNIA, 386 U.S, 18 (1967)

CHIMEL V, CALIFORNIA, 395 U,S, 752 (1969)

CoLEMAN V, ALABAMA, 399 U.S, 1 (1970)

DANIEL Vv, Loursana, 419 U.S, 31 (1975)

Desist v, Unitep States, 394 U.S, 244 (1969)

DeSterano v, Woops, 322 U.S, 631 (1968)

DoucHty v, MaxweLt, 376 U.S, 202 (1964)

DouGLas Vv, CALIFORNIA, 372 U.S, 353 (1963)

Drisco.t Vv, United States, 536 F,2p 324 (1st Cir, 1966)

Duncan Vv, LourstAnA, 391 U.S, 145 (1968)

EscoBepo Vv, ILLINOIS, 378 U,S, 478 (1964)

FuLLer Vv, Acaska, 393 U.S, 80 (1968)

11,16

12-13,1

GIACCIO V, PENNSYLVANIA, 382 U,S, 399 (1966)

GIDEON V, WAINRIGHT, 372 U.S, 335 (1963)

Gosa v, Maypen, 413 U.S, 665 (1973)

GRIFFIN V, CALIFORNIA, 380 U.S, 609 (1965)

Grosso Vv, Unrtep States, 390 U.S, 62 (1968)

HALLIDAY V, UNITED States, 394 U.S, 831 (1969)

HAMLING V, UniTeD States, 418 U,S, 87 (1974)

HANKERSON V, NORTH CAROLINA, 432 U.S, 233 (1977)

HoLT v, BLack, 550 F,2p 1061 (6TH Cir, 1977)

In Re WinsHtP, 397 U.S, 358 (1970)

Ivan v, Crty oF New York, 407 U.S, 203 (1972)

JACKSON V, JUSTICES OF THE SUPERIOR CouRT OF MASSACHUSETTS,

549 F,2p 215 (ist Crr, 1977)

JoHNSON v, New Jersey, 384 U.S, 729 (1966)

Katz Vv, UNITED States, 389 U.S, 347 (1967)

KEEBLE V, UnirTepD States, 412 U.S, 205 (1973)

KER V, STATE OF CALIFORNIA, 374 U.S, 23 (1963)

Lee v, FLoripa, 392 U.S, 378 (1968)

LINKLETTER V, WALKER, 381 U.S, 618 (1965)

McCarTHY Vv, UNITED States, 394 U,S, 459 (1969)

McConneLt v, RHAy, 393 U.S, 2 (1968)

Mackey V, Unitep States, 401 U,S, 667 (1971)

Mapp Vv, OH10, 367 U,S, 643 (1961)

MARCHETTI V, UNITED States, 390 U.S, 39 (1968)

MarRTIN V, Wyrick, 568 F,2p 583 (8TH Cir, 1978)

111

MemPaA Vv, RHAY, 389 U,S, 128 (1967)

MICHIGAN V, Payne, 412 U.S, 47 (973)

MILLER Vv, CALIFORNIA, 413 U,S, 15 (1973)

MIRANDA V, Artzona, 384 U.S, 436 (1966)

Missourt, KANSAS, AND Texas Ry, Co, v, May, 194 U.S,

267 (1904)

NorTH CAROLINA V, Pearce, 395 U.S, 711 (1969)

NORTHERN RY, Co, V, SUNBURST OIL AND REFINING Co,,

287 U.S, 358 (1932)

O’CALLAHAN V, Parker, 395 U.S, 258 (1969)

Rice v, Stoux City Memorial Cemetery, 349 U,S, 70 (1955)

RoBerRTS V, Russett, 392 U,S, 293 (1968)

Ropinson V, Nett, 409 U.S, 505 (1973)

Sansone V, UnitTep States, 380 U,S, 343 (1965)

ScHLOMAN V, MoseLey, 457 F,2p 1223 (10TH Cir, 1972)

SCHNEBLE V, FLoripA, 405 U.S. 328 (1972)

SmiTH V, Crouse, 378 U.S, 584 (1964)

SpaRF Vv, Unrtep States, 156 U,S, 551 (1895)

STOVALL V, Denno, 388 U.S, 293 (1967)

TaYLor V, Lousiana, 419 U.S, 522 (1975)

TEHAN V, UNITED STATES EX REL, SHOTT, 382 U.S, 406 (1966)

UniTep States v, ALLEN, 542 F,2p 630 (4TH Cir. 1976)

UNITED States v, BoarpMAN, 419 F,2p 110 (1st Cir, 1969)

Unitep States v, Brackett, 567 F,2p 501 (D.C, 1977)

UNITED STATES

715

UNITED STATES

UniTeD STATES

v, COCKERHAM, 476 F,2p 542 (D.C, Cir, 1973)

v, Dettincer, 472 F,2p 340 (7TH Cir, 1972)

v, Dorszynski, 542 F,2p 190 (7TH Crr, 1975)

v, DoucHerty, 473 F,2p 1113 (D.C. Cir, 1972)

v, Enos, 453 F,2p 342 (9H Crr, 1972)

v, Escacante, 554 F,2p 940 (9TH Cir, 1978)

v, Jenkins, 496 F,2p 57 (2p Cir, 1974)

v, Markis, 352 F,2p 869 (2p Cir, 1965)

v, Moycan, 417 F,2p 1002 (4tH Cir. 1972)

v, PectieR, 422 U.S, 531 (1975)

yv, Repa, 563 F,2p 510 (2p Cir, 1977)

v, Simpson, 460 F,2p 515 (StH Cir, 1972)

V, ToRBERT, 496 F,2p 154 (9TH Cir, 1974)

v, Unitep States Corn and Currency, 401 U.S,

(1971)

v, Wane, 388 U.S, 218 (1967)

EX REL, CANNON V, JOHNSON, 396 F, Supp, 1362

(E.D, Pa, 1975)

UniTeD STATES EX REL, CANNON V, JOHNSON, 536 F.2d 1013 (3p

Cir, 1976)

UntTeD STATES EX REL, MaTTHEWS Vv, JOHNSON, 503 F,2p 339

(3p Cir, 1974)

UNITED STATES EX REL, Victor v, YEAGER, 300 F, Supp, 802

(D,

WJ, 1971)

1,12

PASSIM

VIRGIN ISLANDS Vv, CARMONA, 422 F,2p 95 (3p Cir, 1970)

WALLER Vv, FLoripA, 397 U.S, 387 (1970)

WATSON V, UNITED States, 484 F,2p 34 (StH Cir, 1973)

WiLL1AMS v, Unrtep States, 401 U.S, 646 (1971)

WETHERSPOON V, ILLINOIS, 391 U.S, 510 (1968)

STATE CASES

Brown v, COMMONWEALTH, 76 Pa, 319 (1874)

CLARK V, COMMONWEALTH, 123 Pa, 555 (1888)

COMMONWEALTH V, Banks, 447 Pa, 356 (1971)

COMMONWEALTH

COMMONWE AL TH

COMMONWEALTH

Vv,

Bucciert, 153 Pa, 535 (1893)

Cain, 471 Pa, 140 (1977)

Cannon, 453 Pa, 389 (1973)

CorBIN, 432 Pa, 55] (1968)

Crossmire, 156 Pa, 304 (1893)

» Curcio, 216 Pa, 380 (1907)

» Davis, 449 Pa, 468 (1973)

Dews, 429 Pa, 555 (1968)

Eckerd, 174 Pa, 137 (1896)

» Flax, 331 Pa, 145 (1938)

Foster, 364 Pa, 288 (1950)

HECKATHORN, 429 Pa, 534 (1968)

HoFFMAN, 439 Pa, 348 (1970)

. Jones, 450 Pa, 442 (1973)

Jones, 457 Pa, 563 (1974)

PASSIM

14°

PASSIM

COMMONWEALTH

COMMONWEALTH .V,

COMMONWEALTH

STATUTES

26 U.S.C. § 7302

RuLes

Vv,

Kenney, 449 Pa, 562 (1972)

LaRue, 381 Pa, 113 (1955)

LEGRANGE, 227 Pa, 368 (1910)

MacMurray, 198 Pa, 51 (1901)

MELeskIe, 278 Pa, 37 (1923)

» Morrrson, 266 Pa, 223 (1920)

Pava, 268 Pa, 520 (1920)

» PAVILLARD, 421 Pa, 571 (1966)

Ropinson, 305 Pa, 302 (1931)

SPARDUTE, 278 Pa, 37 (1923)

Sutton, 205 Pa, 605 (1903)

YEAGER, 329 Pa, &1

U.S, Sup, Ct, Rute 19, 28 U.S.C,

Vil

COUNTER-STATEMENT OF THE ISSUES PRESENTED

1 WASCAUGHTER RY THOUT AK

OR?

COUNTER-STATEMENT OF THE CASE

—j SS foo.

EE Hohe

PETITIONER, GERALD R, CAIN, WAS CONVICTED OF MURDER, BURGLARY,

AGGRAVATED ROBBERY, AND CONSPIRACY, ON INDICTMENT Nos, 2179-2182,

June Session, 197], AFTER A TRIAL IN THE Court oF Common PLEAS OF

PHILADELPHIA COUNTY BEFORE THE HONORABLE HOMER L, KREIDER AND A

JURY, PETITIONER WAS SENTENCED TO LIFE IMPRISONMENT ON THE MURDER

BILL, WITH SENTENCES ON THE OTHER CHARGES RUNNING CONCURRENTLY,

AFTER TIMELY APPEAL TO THE PENNSYLVANIA SUPREME COURT, THAT CouRT,

BY AN EQUALLY DIVIDED VOTE, AFFIRMED THE JUDGMENT OF SENTENCE,

COMMONWEALTH V, CAIN, 369 A,2p 1234 (Pa, 1977),

SUBSEQUENTLY, PETITIONER SOUGHT A WRIT OF HABEAS CORPUS IN

THE UNITED States District Court FoR THE EASTERN DISTRICT OF PENN-

SYLVANIA, DOCKETED AS CIVIL AcTION 77-2834, By ORDER DATED JANU-

ARY ll, 1978, THE PETITION WAS DENIED WITHOUT AN EVIDENTIARY HEAR-

ING, BY THE HONORABLE EDWARD N, CAHN, WHO HELD THAT THERE WAS

PROBABLE CAUSE FOR APPEAL, PETITIONER APPEALED TO THE THIRD CIR-

CUIT, WHICH AFFIRMED JUDGE CAHN’S DECISION IN A JUDGMENT ORDER

DATED SEPTEMBER 7, 1978, On SEPTEMBER 28, 1978, PETITIONER'S

REQUEST FOR A REHEARING EN BANC WAS DENIED,

THE EVIDENCE PRESENTED AT PETITIONER’S TRIAL IN STATE COURT

REVEALED THAT CHARLES GREEN AND THE DECEDENT, GLENN EDWARDS, CAME

TO PHILADELPHIA BY PLANE ON May 22, 1971, BoTH MEN WERE COLLFGE

STUDENTS AT CENTRAL STATE UNIVERSITY IN WILBERFORCE, OHIO, THE

PURPOSE OF THEIR VISIT WAS TO BUY MARIJUANA AND RETURN TO WILBER-

FORCE, THEY EVENTUALLY CAME IN CONTACT WITH PETITIONER, GERALD

CAIN, WHO TOLD THEM THAT HE COULD OBTAIN MARIJUANA FOR THEM, THERE-

AFTER, PETITIONER, ALONG WITH OTHERS, CONSPIRED TO LURE GLENN

EDWARDS TO A VACANT HOUSE -- ON THE PRETENSE OF CONSUMMATING THE

SALE -- IN ORDER TO ROB HIM, IN THE COURSE OF THE ROBBERY AND IN

THE PRESENCE OF PETITIONER, GLENN EDWARDS WAS FATALLY SHOT BY CAL-

VIN WILLIAMS, ONE OF THE CONSPIRATORS, SOME TIME AFTER MIDNIGHT ON

May 24, 1971, THEREAFTER, PETITIONER SHARED IN THE PROCEEDS OF THE

ROBBERY TH HIS CONFEDERATES (N,T, 740-800, 888-916, 928-84, 1691-

1702),

FOLLOWING THE DISCOVERY OF GLENN EDWARDS’ BODY IN THE VACANT

HouSE ON May 25, 1971, AN INVESTIGATION LED TO THE ARREST OF PETI-

TIONER ON May 26, 1971 (N,T, 1257-59), PeTITIONER LATER MADE ORAL

ADMISSIONS AND GAVE A FORMAL STATEMENT ADMITTING THAT HE WAS AWARE

OF THE PLANNED ROBBERY (N,T, 127-72),

On Jucy 9, 1971, CALVIN WILLIAMS, THE ACTUAL SHOOTER, WAS

ARRESTED, WILLIAMS TESTIFIED AT THE TRIAL THAT THERE WAS A CON-

SPIRACY BETWEEN HIMSELF, PETITIONER, AND OTHERS TO ROB THE DECE-

DENT, THAT THEY CARRIED OUT THE CONSPIRACY, AND THAT IN THE COURSE

AD wit ciate ©

OF THE ROBBERY AND IN THE PRESENCE OF PETITIONER, THE VICTIM WAS

SHOT AND KILLED (N,T, 928-84),

NN WY LE \

PETITIONER PRESENTS NO VIABLE GROUNDS FOR GRANTING HIS PETI-

TION, WHICH SHOULD BE DENIED,

THE COURT BELOW CORRECTLY REFUSED TO RETROACTIVELY APPLY ITS

DECISION IN UNITED STATES EX REL, MATTHEWS V, JoHNnson, 503 F,2p 339

(3p Cir. 1974) To PETITIONER AS THE DECISION WAS INCORRECT.

EVEN IF MATTHEWS WAS CORRECTLY DECIDED, BECAUSE IT DID NOT

IMPLICATE THE TRUTH~FINDING PROCESS, THE THIRD CIRCUIT PROPERLY

APPLIED THE CASE IN A NON-RETROACTIVE FASHION,

FINALLY, PETITIONER WAS NOT HARMED BY THE CourT’S REFUSAL TO

APPLY MATTHEWS TO HIS CASE,

Fede HURL CRREE A OocultaRy PARSE

ASE

DENCE OP PROV

PETITIONER CONTENDS” THAT HE WAS ENTITLED TO A JURY INSTRUCTION

ON VOLUNTARY MANSLAUGHTER EVEN THOUGH NO EVIDENCE WAS PRESENTED AT

TRIAL WHICH EVEN REMOTELY SHOWED PROVOCATION OR PASSION, SEE Com-

MONWEALTH V, HOFFMAN, 439 Pa, 348, 356-357, 266 A.2p 726, 731

(1970), PETITIONER RAISED THIS POINT BEFORE THE PENNSYLVANIA

SUPREME COURT IN HIS DIRECT APPEAL, WHICH WAS PENDING WHEN THAT

CouRT DECIDED COMMONWEALTH Vv. Jones, 45/7 Pa, 563, 319 A.2p 142

(1974), cert, DENIED, 419 U.S, 1000 (HEREINAFTER: Jones), IN

THAT CASE THE CoURT ENDED THE LONGSTANDING PRACTICE OF ALLOWING

TRIAL COURTS DISCRETION IN THEIR DECISION TO CHARGE ON VOLUNTARY

MANSLAUGHTER IN THE ABSENCE OF AN EVIDENTIARY BASIS THEREFOR +

SUBSEQUENT TO THE JONES DECISION, THE THIRD CIRCUIT RULED THAT

THE CONSTITUTION REQUIRED TRIAL COURTS TO CHARGE ON VOLUNTARY MAN-

SLAUGHTER UPON REQUEST, EVEN WHEN NO EVIDENCE WAS PRESENT WHICH

WOULD JUSTIFY SUCH A CHARGE, UNITED STATES EX REL, MATTHEWS Vy

Jonwson, 503 F,2p 339 (3p Cir, 1974), CERT. DENIED SUB. NOM, CUYLER

y, MATTHEWS, 420 U,S, 952 (HEREINAFTER: MartHEWs) ALTHOUGH THREE

MEMBERS OF THE COURT VOTED TO APPLY THE MATIHEWS HOLDING TO ALL

CASES ON DIRECT APPEAL AT THE TIME OF THE DECISION, THE MAJORITY

OF THE COURT DID NOT REACH THE ISSUE, JD, AT 346-347, IN A LATER

Lruree tt ae OF JHE Jones Court RULED ~~ THE HOLDING WAS

BASED UPON THE LOURT S SUPERVISORY POWERS, HE THREE JUSTICES

FURTHER DETERMINED THAT THE RECORD WAS DEVOID OF ANY EVIDENCE

WHICH SUGGESTED THAT THE DEFENDANT, JONES, ey PREJUDICED BY THE

ABSENCE OF A VOLUNTARY MANSLAUGHTER CHARGE, HREE MEMBERS OF THE

CoURT VOTED TO REVERSE JONES’ CONVICTION, BASING THEIR DECISION

ON CONSTITUTIONAL GROUNDS, AS THE LOURT WAS EVENLY DIVIDED, THE

JUDGMENT OF SENTENCE WAS AFFIRMED,

INTERESTINGLY, FORMER CHIEF JUSTICE JONES, WHO DID NOT PARTICI-

PATE IN THE Jones DECISION, VOTED AGAINST RETROSPECTIVE APPLICATION

Seas MER ORNS AY TS" THRRPR, SUBSET SSS BELOW

2MATTHEWS WAS NOT A RULING ON SUBSTANTIVE CRIMINAL LAW, RATHER,

T WAS AN ATTEMPT TO ELIMINATE ARBITRARINESS FROM CRIMINAL TRIALS,

NCEIVABLY, THEREFORE, THE DUE PROCESS REQUIREMENTS EXPRESSED IN

iS COULD BE SATISFIED IF NO FENNSYLVANIA MURDER DEFENDANT

RECEIVED A VOLUNTARY MANSLAUGHTER CHARGE,

DECISION, UNITED STATES Ex REL, CANNON v, JOHNSON, 536 F,2p 1013,

1015 (3p Cir, 1976), cent. DENIED, 429 U.S, 928 (HEREINAFTER:

CANNON), THE COURT HELD:

MATTHEWS IS INAPPLICABLE TO PENDING AND/OR

FUTURE 2APPEALS FROM PRE-FATTHEWS MURDER VER-

DICTS,

IN DENYING THE INSTANT PETITION, THE THIRD CIRCUIT HAS REAF-

FIRMED THIS WELL-CONSIDERED DECISION, PETITIONER CONTENDS THAT

THIS PROSPECTIVE APPLICATION OF [MATTHEWS SOMEHOW VIOLATES HIS

FOURTEENTH AMENDMENT RIGHTS. IT IS AXIOMATIC, HOWEVER, THAT A

DEFENDANT MUST BE DENIED A FEDERALLY ACCORDED RIGHT BEFORE THE

PROSPECTIVE APPLICATION OF THAT RIGHT MAY BE SAID TO VIOLATE DUE

SPETITIONER CONTENDS THAT THIS HOLDING WAS “DICTA” BECAUSE THE

DEFENDANT IN WAS SEEKING COLLATERAL RELIEF, YET, PETITIONER

RELIES UPON THE THREE JUDGE RETROACTIVITY “HOLDING” IN f ws,

A CASE IN WHICH THE DEFENDANT WAS ALSO SEEKING COLLATERAL RELIEF.

PETITIONER'S ALLEGATIONS OF PREJUDICE REGARDING THE “DICTA” ARE

UNCLEAR, MOREOVER, THEY ARE IRRELEVANT AS THE THIRD RIRCYIT s

DENIAL OF THE INSTANT PETITION AND ADOPTION OF JUDGE CAHN’S ORDER

HAS TRANSFORMED THE “DICTA” INTO BINDING PRECEDENT,

MOREOVER, THE RULING ON DIRECT APPEALS AND RETROACTIVITY

WAS NOT DICTA.” UN THE CONTRARY, IT WAS_IN ACCORD WI'H TH

TSM SARUM gare prc ets nS Re

1S JUSTIFIED BETWEEN CONVICTIONS NOW FINAL . . , AND CONVICTIONS

AT VARIOUS STAGES OF DIRECT REVIEW,”

FINALLY, PETITIONER'S CONCERN THAT DEFENDANTS WILL LOSE INCENTIVE

TO APPEAL THEIR CONVICTIONS IF NEW CONSTITUTIONAL RULINGS ARE MADE

WHOLLY PROSPECTIVE IS “ye IRRELEVANT AS NO NEW CONST] TUTIONAL

OR THE INSTANT CASE, HE NEW

RULING WAS ANNOUNCED hh

RULINGS IN AND » ON THE OTHER HAND, APPLIED TO THE

DEFENDANTS IN THOSE CASES,

PROCESS.“ INSTANTLY, SINCE THE THIRD CIRCUIT ERRED IN [JATTHEWS,

PETITIONER COULD NOT HAVE BEEN PREJUDICED BY THE “PROSPECTIVE”

APPLICATION OF THAT RULING,»

A, THE MATTHEWS DOCTRINE IS INCORRECT AS IT CONTRAVENES

THE MOST BASIC CONCEPTS OF FEDERALISM AND UNDERCUTS

THE JUDICIAL FUNCTION,

THE MATIHEWS HOLDING OFFENDS THE MOST BASIC PRINCIPLES OF

FEDERALISM AS CLASSICALLY EXPRESSED BY Mr, Justice HoLmes IN Ms-

SOURL, Kansas, AND Texas Raiway Co, v, Nay, 194 U.S, 267, 270,

24 S, Cr. 638, 639 (1994):

GREAT CONSTITUTIONAL rNeoee eee MUST BE ADMIN-

ISTERED WITH CAUTION, OME PLAY MUST BE

ALLOWED FOR THE JOINTS OF THE MACHINE, AND IT

MUST BE REMEMBERED THAT LEGISLATURES ARE THE

ULTIMATE GUARDIANS OF THE LIBERTIES AND WEL~

FARE OF THE PEOPLE IN QUITE AS GREAT A DEGREE

AS THE COURTS,

See Ker v, STATE OF CALIFORNIA, 374 U.S, 23, 64-66, 83 S, Cr, 1623,

1645-1646, 10 L.Ep,2p 726 (1963) (ConcurRinG OPINION OF HaRLAN, J,),

IN REQUIRING A VOLUNTARY MANSLAUGHTER CHARGE IN EVERY MURDER

TRIAL, THE THIRD CIRCUIT HAS PUT ALL PENNSYLVANIA TRIAL COURTS IN A

4s FOOTNOTES 13 AND 14 MAKE CLEAR, THIS COURT HAS RULED ON THE

RETROACTIVITY OF FEDERALLY MANDATED HOLDINGS ONLY,

OTHE QUESTION OF THE RETROACTIVITY OF JONES IS NOT HERE IN ISSUE,

MOREOVER, THE RETROACTIVITY OF A STATE” ACCORDED RIGHT is NOT A

EDERAL QUESTION, SEE OPINION OF CaRpozo, 47 yb 3

, ' O, '

, supra, 361 US, at 625,

); CITED IN

“CONSTITUTIONAL STRAITJACKET.” SUCH PRACTICE SHOULD BE CONDEMED

BY THIS CourT,

MOREOVER, THE MATIHEWS COURT HELD THAT A IRIAL COURT MAY NOT,

WITHIN THE CONFINES OF DUE PROCESS, EXERCISE DISCRETION ON IRJAL

RULINGS UNLESS PROVIDED WITH SPECIFIC RULES FOR THE EXERCISE OF THAT

DISCRETION, CITING GIACCIO Vv, PENNSYLVANIA, 382 U.S, 399, 86S. Cr,

218, 15 L.Ep.2p 447 (1966). THIS CONCLUSION REPRESENTS AN UNWAR-

RANTED EXTENSION OF THE LIMITED HOLDING IN GJACCJO, WHICH DEALT WITH

THE POWER OF A JURY TO ASSESS A FINE FOR ANY UNSPECIFIED MISCONDUCT

AND THE ABILITY OF AN ACCUSED TO DEFEND AGAINST UNNAMED AND ENTIRELY

UNSPECIFIED CHARGES,

IN ADDITION, THE LOGICAL APPLICATIONS OF THE CONCLUSION WOULD

SERIOUSLY IMPAIR THE FUNCTION OF EVERY TRIAL JUDGE, THROUGHOUT A

TRIAL, PARTICULARLY A JURY TRIAL, THE COURT IS CALLED UPON TO MAKE

COUNTLESS JUDGMENTS UPON ISSUES WHICH ARE VESTED IN HIS “SOUND DIS-

CRETION,” A PARTIAL LIST WOULD INCLUDE CONTINUANCE REQUESTS, ©

SEVERANCE REQUESTS,’ VOIR Dire, © LIMITATION OF CROSS-EXAMINATION,

SEQUESTATION OF THE JURY, BAIL, AND SENTENCING, IN ALL OF THESE

SITUATIONS NO SPECIFIC GUIDELINES ARE GIVEN TO THE TRIAL COURTS,

OTHER THAN PERHAPS SOME MINIMUM STANDARD OF FAIRNESS DUE THE ACCUSED

6 vie

83 US, 308 (1931); Unitep States

ve CODRIDGE Vs UNITED STATES, 283 As Cine {ereyo? Us

“UiteD StareS vs Jenkins, 496 F.2p 57, 67-68 (2p Cir. 1974),

UNITED STATES v, TorBerT, 496 F.2p 154 (97H Cir, 1974),

BUT EXCESSES FAVORING THE DEFENDANT WOULD NOT ONLY GO UNCORRECTED,

BUT WOULD BECOME THE STANDARD,

AND SOME SCATTERED CASES HOLDING THAT A DEFENDANT WAS NOI ENTITLED

TO SOME PARTICULAR REQUEST WHICH WAS REFUSED HIM, [JATTHEWS THROWS

THIS JUDICIAL FUNCTION INTO QUESTION, TO A LARGE EXTENT THE ORDERLY

B, THE DECISION OF THE CouRT IN MATTHEWS Co}

. ' cee c ’ = ‘ -) DEW CONFLICTS

CONTROL OF A TRIAL DEPENDS UPON THE EXERCISE OF DISCRETION OF THE WITH THE IMPLICIT HOLDINGS OF THI COURT,

TRIAL JUDGE, AND IN PARTICULAR UPON HIS ABILITY TO ACT WITH A WIDE

In [ATIHEWS, THE COURT HELD THAT:

WE BELIEVE THAT THE SAFEGUARDS OF DUE PROCESS

DEGREE OF LATITUDE TO FIT THE RULING TO THE PARTICULAR CIRCUMSTANCES

OF THE CASE, WIDESPREAD APPLICATION OF THE MATTHEWS RULING WOULD WILL BE SATISFIED ONLY WHEN ALL DEFENDANTS 14

PRECLUDE THIS EXERCISE OF DISCRETION AND WOULD BODE OMINOUSLY FOR SENNEYLVANLA UPON REQUEST DUCy MADE. TO 'HAVECA

THE ORDERLY ADMINISTRATION OF CRIMINAL JUSTICE, AG WELL AS FIRST AAD BECOND Seance MURDERS

SINCE SOME TRIAL COURTS MAY GIVE THE CHARGE EVEN THOUGH OTHERS Ip. at 346,

DO NOT WHEN THE EVIDENCE DOES NOT SUPPORT 1T, THE [MATTHEWS COURT . THIS RULING CONFLICTS WITH THE IMPLICIT HOLDING IN SPARF y,

REASONS THAT DUE PROCESS REQUIRES THAT ALL DEFENDANTS BE GIVEN THE : Uvitep States, 156 U.S, 51 (1895), There, THIS CoURT REJECTED A

CHARGE UPON REQUEST, THE DIFFICULTY WITH SUCH RELIEF LIES IN THE CLAIM ANALOGOUS TO THAT RAISED BY THE DEFENDANT IN MATTHEWS, MR.

ESSENTIAL UNAPPEALABILITY OF RULINGS -- ERRONEOUS OR NOT -- FAVOR- ie Justice HARLAN OBSERVED:

ABLE TO THE DEFENDANT, AND THE PRACTICE OF SOME TRIAL COURTS OF [IJ THIS CASE, IT WAS COMPETENT FOR THE COURT

ERRING IN CLOSE CASES IN DEFENDANT'S FAVOR RATHER THAN RISKING oN ie fie 9 A Ie

REVERSAL ON APPEAL, BECAUSE OF THESE REALITIES, ANY SITUATION CALL TORY COULD HOT, ROHS Te tLe Wee LAUGHTER

AW, RETURN

A VERDICT OF GUILTY OF THAT cRIME,9 :

Ip, AT 191, THe Court oF APPEALS ATTEMPTED TO DISTINGUISH SPARF

BY STATING:

ING FOR THE EXERCISE OF DISCRETION WILL INEVITABLY RESULT IN SOME

INSTANCES OF DEFENDANTS GETTING BEENFITS TO WHICH THEY ARE NOT BY

LAW ENTITLED, BUT WHICH CANNOT BE APPEALED BY THE STATE, :

IF EVERY TIME SUCH BENEFITS ARE GIVEN IN OCCASIONAL CASES,

S ADMITTEDLY, THE CouRT IN SPARF DID NOT RULE ON THE SPECIFIC

DUE PROCESS REQUIRES AN EXTENSION OF THE BENEFIT TO ALL DEFENDANTS, SSUE OF WHETHER BUE PROCESS TS TIC TES By erage THE SPECIFIC

/ v] ‘

THE EVENTUAL RESULT WILL BE TO THROW THE SCALES OF JUSTICE FAR OUT Rt By ig nis ertupas DISSENT, non on bia ene :

" / 4

OF BALANCE, AN “ERROR” WHICH UNFAIRLY BENEFITS THE ACCUSED WILL . IMPLICITLY REACHED IN SPaKF, Pa Me g a1 350°358," Tits, RP ARE

NOT BE CORRECTED, AND ULTIMATELY WILL BE EXTENDED TO ALL OTHERS,

UNDER SUCH A SYSTEM, EXCESSES FAVORING THE STATE WOULD BE DISALLOWED,

THe Supreme Court IN SPARF WAS CONFRONTED

WITH ISSUES OF STATUTORY CONSTRUCTION ONLY,

MaTInEwS AT 343, THIS CourT IN SPARE, HOWEVER, DESCRIBED THE ISSUE

PRESENTED AS BEING ONE OF CONSTITUTIONAL DIMENSION:

BRIEFLY STATED, THE CONTENTION OF THE ACCUSED

IS THAT, ALTHOUGH THERE MAY NOT HAVE BEEN ANY

EVIDENCE WHATEVER TO SUPPORT A VERDICT OF GUILTY

OF AN OFFENSE LESS THAN THE ONE CHARGED, =" AND

SUCK WAS THE CASE HERE, 7" YET, TO CHARGE THE

JURY, AS MATTER OF LAW, THAT THE EVIDENCE IN THE

CASE DID NOT AUTHORIZE ANY VERDICT EXCEPT ONE OF

GUILTY OR ONE OF NOT GUILTY OF THE PARTICULAR

OFFENSE CHARGED, WAS AN INTERFERENCE WITH THEIR

LEGITIMATE FUNCTIONS, AND THEREFORE WITH THE CON-

STITUTIONAL RIGHT OF THE ACCUSED TO BE TRIED BY

A JURY,

SPARF, SUPRA AT 99,

THE PRINCIPLES UNDERLYING ITS HOLDING HAVE NOT BEEN ERODED

OVER THE YEARS AND, INDEED, HAVE BEEN REAFFIRMED, BERRA Vs UNITED

States, 351 U.S, 131, 76S. Cr, 685, 100 L.En, 1013 (1956); San-

sone v, Unizep States, 380 U.S, 343, 349-50, &5 S, Cr, 1004, 13

L.Ep,2p 882 (1965); Keepre v. Uni:tep States, 412 U.S, 205, 93 S,

Cr, 1993, 36 L.Ep,2p S44 (1973), See Betton v. Unitep States, 382

F.2p 150 (D.C, Cir, 1967); compare Unitep States v. Doucuerty, 473

F,2p 1113 (D.C, Cir, 1972); Unitep States v. Deitincer, 472 F.2p

340 (77H Cir, 1972); Unitep States vy. Simpson, 460 F,2p 515 (9TH

Cir, 1972); Unitep States v, Boarpman, 419 F,2p 110 (Ist Cir, 1969),

CERT. DENIED, 397 U.S, 991 (1970); Uniten States vy. Moyian, 417 F.2p

1002 (47H Cir, 1972); Drrscorp v, Unitep States, 536 F,2p 324 (1st

Cir, 1966); Unitep States v. Markis, 352 F,2p 860 (2p Cir, 1965)

(OPINION OF FRIENDLY, J.) (ALL REJECTING THE CONTENTION THAT A LESSER

——

INCLUDED OFFENSE MUST BE CHARGED ABSENT EVIDENCE OF THE LESSER

CHARGE) .

In SUM, IT 1S PLAIN THAT THE THIRD CIRCUIT'S RULING IN MATH

THEWS WAS ERRONEOUS, THUS, THE FACT THAT THE BENEFIT OF THE [1AT=

L4EWS RULING WAS NOT EXTENDED RETROACTIVELY TO PETITIONER 1S OF NO

Hn tesa

HIRD CIRCUIT FR

ef i Mrs as

NOt REFECT THE 4

ER TR

SHOULD THIS COURT DETERMINE THAT [ATTHEWS WAS CORRECTLY DECIDED,

TRIAL,

THE PROSPECTIVE APPLICATION OF THAT CASE WAS, NONETHELESS, PROPER,

THUS, PETITIONER SUFFERED NO CONSTITUTIONAL PREJUDICE WHEN NATIHEWS

WAS NOT APPLIED TO HIS CASE, IN REJECTING PETITIONER'S CLAIM BELOW,

BOTH JupGE CAHN AND THE PENNSYLVANIA SUPREME COURT RELIED STRONGLY

UPON THE THIRD CIRCUIT'S REASONING IN CANNON AND Jupce Becker's

ANALYSIS IN UNITED STATES EX REL, CANNON V, JOHNSON, 396 F, Supp,

1362 (E.D, Pa, 1975) (HerernarTeR: Dist, Cannon), IN SUM, EACH

OF THE APPELLATE COURTS IN WHICH PETITIONER HAS LITIGATED HAS FOL™

LOWED THE GUIDELINES SET OUT BY THIS CourRT IN DANIEL Vv, LOUISIANA,

419 U.S, 31, 32, 95S, Cr. 704, 705, 42 L.Ep.2p 790 (1975),10 See

21H ACTIVE

i Wl Suen

MU WW

10,

NDEED, JUDGE WEIS CONCURRED IN THE RETROACTIVITY RULING IN

CANNON, REVERSING HIS DECISION IN [: , BASED 0 1§ CourT’s

DECISION IN RAN LEL vy POLIS LANA, SUPRA, AT Hot!

STOVAL! y DENN , SUPRA; LINKLETTER Vy. VAL KER, 381] U.S, 618, 85

Ct, 1731, 14 L.Ep.2p 601 (1965), IN DETERMINING WHETHER RETRO-

ACTIVE APPLICATION 1S TO BE ACCORDED A NEWLY MANDATED CONSTITU-

TIONAL STANDARD FOR CRIMINAL PROCEDURE, THIS COURT HAS CALLED FOR

THE CONSIDERATION OF THREE CRITERIA:

(A) THE PURPOSE TO BE SERVED BY THE NEW STAN-

DARDS, (B) THE EXTENT OF THE RELIANCE BY LAW

ENFORCEMENT AUTOHORITIES ON OLD STANDARDS, AND

TICE OF A RETROACTIVE APPLICATION OF THE NEW

STANDARDS ,

Cannon AT 1015, ciTING STOVALL, SUPRA AT PAGE 297, 87S, CT. aT

1969),21 Tue courts WHICH HAVE CONSIDERED THE ISSUE AGREE THAT

THE PURPOSE OF THE [ATTHEWS RULE WAS THE ELIMINATION OF POSSIBLE

ARBITRARINESS FROM THE JUDICIAL PROCESS, AND THAT THE RULE IN NO

WAY IMPLICATED THE TRUTH FINDING PROCESS, CANNON AT 1016; MATTHEWS

AT 348; Dist. Cannon at 1367; CommonwEALTH v. CAIN, SUPRA AT 1245;

COMMONWEALTH VY, JONES, SUPRA AT 149, IT IS WELL-SETTLED THAT THE

ABOVE-DESCRIBED RELIANCE AND BURDEN FACTORS BECOME CONTROLLING

ONCE IT IS DETERMINED THAT THE PURPOSE OF THE NEW RULE DOES NOT

IMPLICATE THE TRUTH-FINDING PROCESS, WILLIAMS V, UNITED STATES,

401 U.S, 646, 653, 91 S, Cr, 1148, 1152, 28 L.Ep.2p 388 (1971);

Desist v. Unitep States, 394 U.S, 244, 249, 89 S, Cr, 1030, 1033,

Uty1s Court HAS RECENTLY REAFFIRMED 1S RETROACTI Y STANDARD,

KeRON Vy 8D Ure. 253, 99 8 Cr. 2339, 2 3ub,

22 L.Ep.2p 248 (1969); Canwon at 1016; see atso Brown v. Unitep

States, 422 U.S, 916, 916, 95 S, Cr. 2569, 2572, 45 L.Ep.2p 641

(1975); Unitep States v, Perrier, 422 U.S, 531, 535, 95 S, Cr,

2313, 2316, 45 L.Ep.2p 374 (1975), AN EXAMINATION OF THE LAW PRIOR

TO COMMONWEALTH V, JONES, SUPRA, MAKES PLAIN THAT THE COURTS OF

PENNSYLVANIA RELIED HEAVILY ON THE “OLD STANDARDS,” WHICH WERE

REPEATEDLY REAFFIRMED BY THE PENNSYLVANIA SupREME Court: SEE,

Brown Vv, COMMONWEALTH, 76 Pa, 319, 339 (1874); Crark v. Common-

WEALTH, 123 Pa, 555, 575, 16 A, 795, 799 (1888); CommMoNWEALTH V.

Buccier1, 153 Pa, 535, 26 A, 228 (1893); CommonweaLTH v. CRossMmiRe,

156 Pa, 304, 27 A, 40 (1893); CommonweaLtH v, Fcxerp, 174 Pa, 137,

34 A, 305 (1896); CommonweaLtTH v, MacMurray, 198 Pa, 51, 47 A, 952

(1901); ComMONWEALTH v. Sutton, 205 Pa, 605, 55 A, 781 (1903); Com-

MONWEALTH Vv, Curcio, 216 Pa, 380, 65 A, 792 (1907); CommonwEALTH

y. LeGrance, 227 Pa, 368, 76 A, 63 (1910); CommonweALTH v. MORRISON,

266 Pa, 223, 109 A, 878 (1920); CommonweaLtTH v, Pava, 268 Pa. 520,

112 A, 103 (1920); CommonweaLTH v, SpaRDUTE, 278 Pa, 37, 122 A,

161 (1923); CommMonweALTH v. MeLesKie, 278 Pa, 37, 122 A.2p 161

(1923); COMMONWEALTH v. Ropinson, 305 Pa, 302, 157 A, 689 (1931);

ComMONWEALTH V, YEAGER, 329 Pa, 81, 196 A. 827 (1938); CommoNWwEALTH

vy. Fax, 331 Pa, 145, 200 A, 632 (1938); CommonweaLtH v, LaRue,

381 Pa, 113, 112 A,2p 362 (1955); CommonwealtTH v. Foster, 364 Pa,

288, 72 A.2p 279 (1950); COMMONWEALTH v, Pavirtarp, 421 Pa, 571,

220 A.2p 807 (1966); Commonweatn v. Dews, 429 Pa, 555, 239 A,2p

392 (1968); CommonweaLTH v. CorBin, 432 Pa, 551, 247 A,2p 584

(1968); ComMONWEALTH v, HeckaTHORN, 429 Pa, 534, 241 A.2p 97 (1968);

CommonweaLtH v. Banks, 447 Pa, 356, 285 A,2p 112 (1971); Common-

weaLTy v. Kenney, 449 PA, 562, 297 A.2p 794 (1972); COMMONWEALTH

v. Davis, 449 Pa, 468, 297 A.2n 817 (1972), cert. penen, 414 U.S.

836 (1973); Commonwealth v. Jones, 450 Pa, 442, 299 A.2p 288 (1973);

COMMONWEALTH Vv. Cannon, 453 Pa, 389, 309 A,2p 384 (1973), IN appl-

TION, THE STATE COURTS RELIED UPON NUMEROUS FEDERAL PRECEDENTS

UPHOLDING AN ANALOGOUS PRACTICE, FROM WHICH [MATTHEWS REPRESENTED

A BREAK, See SPARF Vv, UNITED STATES, SUPRA, REAFFIRMED IN BERRA

v. UNITED STATES, SUPRA; SANSONE VY, UNITED STATES, SUPRA; AND

KEEBLE v, UNITED STATES, SUPRA, See ALSO Berton v. Unitep STATES,

382 F.2p 150 (D.C. Cir, 1967); Uniten States v. Markis, 352 F,2p

860 (2p Cir. 1965); Driscow. v, Unitep States, 356 F,2p 324 (Ist

Cir. 1966); Uwiten States v. Enos, 453 F.2p 342 (9TH Cir, 1972);

Uwitep STATES £x REL, Victor v. Yeacer, 300 F. Supp, 802 (D.N.J,

1971); Virgin Istanps v. Carmona, 422 F.2p 95 (3p Cir. 1970),

As Jupce Becker’sS OPINION IN DIST. CANNON MAKES ABUNDANTLY

CLEAR, RETROACTIVE APPLICATION OF MATIHEWS WOULD HAVE DISASTROUS

EFFECTS ON THE ADMINISTRATION OF JUSTICE IN PENNSYLVANIA, Lp, AT

1365-71) .42 Contrary TO PETITIONER'S ASSERTIONS, THIS WOULD NOT

BE A MERE “ADMINISTRATION BURDEN,” WHICH THE PENNSYLVANIA SUPREME

COURT COULD HANDLE WITH “PER CURIAM OPINIONS,” RATHER, RETROSPEC-

TIVE APPLICATION OF MATTHEWS WOULD RESULT IN WHOLESALE REVERSAL OF

Ln, CHier Justice (THEN JUSTICE) EAGEN WROTE: “A HORRENDOUS

BURDEN WOULD BE PLACED ON THE ADMINISTRATION OF mugrice WERE WE TO

APPLY }$ ASES ON DIRECT Pea tis ae see

, SUPRA AT 1246; SEE

HUNDREDS OF MURDER CONVICTIONS WHICH WERE PROPERLY OBTAINED IN

RELIANCE UPON EXTREMELY WELL~SETTLED PRECEDENT, IN LIGHT OF THIS

APPALLING BURDEN, THE RELIANCE ON THE OLD STANDARDS BY THE STATE

COURTS, AND THE PURPOSE OF THE [JATTHEWS RULE, THE THIRD CircuIT’s

DECISION TO APPLY MATIHEWS PROPSECTIVELY IS UNASSAILABLE,

PETITIONER EXPRESSES AN OBSCURE FEAR THAT THE THIRD CIRCUIT

HAS CREATED A NEW STANDARD WHICH WOULD RESULT IN WHOLLY PROSPEC-

TIVE OR RETROACTIVE APPLICATIONS OF NEW CONSTITUTIONAL RULINGS,

THIS 18 LITTLE MORE THAN PETITIONER'S THINLY VEILED BELIEF THAT

THIS COURT SHOULD NOW REJECT ITS THREE PRONG RETROACTIVITY TEST,

SUCH A CONTENTION 1S OBVIOUSLY UNACCEPTABLE, THE TEST, WHICH

WAS FOLLOWED BY THE THIRD CIRCUIT BELOW AND IN CANNON, HAS BEEN

REPEATEDLY APPLIED BY THIS COURT IN CASES INVOLVING RULINGS WHICH

AFFECT THE TRUTH“DETERMINING PROCESS AND THOSE WHICH DO

13H ANKERSON _Y, NORTH » SUPRA (PROSECUTION MUST DISPROVE

URDER fig’ fee “ALONG, HOLD ay

ee Angas

an ea brs ea ene ne tt

: ae ener i B.g, 5 dh ee

o ie. "Si eet i i ee gt ae ciel

rg ar Usenet

(Footnote 13 CONTINUED ON NEXT PAGE,)

not, 4 WITH VARYING DEGREES OF RETROACTIYITY ACCORDED TO EACH,

PETITIONER HAS PRESENTED NO NEW OR VIABLE REASONS TO REJECT THIS

THOUGHTFUL AND WELL“SETTLED STANDARD,

(Footnote 13 CONTINUED FROM PREVIOUS PAGE, )

nade, FULL COUNSEL AT We INARY HEARIN a ED, IS

GP CHE PN ae tea 2? Ua fe He: fo

D 3 B tte 60), TNS , INSURING RIGHT TO 35RUSEL 4

FURLY RETRO"

+ PERTH PENAL TY HOLDING FULLY, RETROA a Ser “Rouse, 378"

GS) 5B, DS. $65" a ssi | rt. LE 2

LY RETROACTIVE et eee ae

Ne BS: p20 83" Ep.2p 769 (1863) FULLY ALMWELGHT.

14 SUpgs (Ape 1 Da Spucsz at

SP tint $003 Zeb: oF Wither edertes SUP URY. SE

Let poh dase Ma sed So eet,

Y JURIES E Tes F f Recisi0 oh, i

CASES DIRECT APPEAL AT i ae NGA V_MAYDEN 413

ish Ue Beta k Ee

| a eres is sAAE Pan PROG ED URES BOR Ss 7, 1066, 3

Rie OF nt et be ie

seas e erie ame age ip (a cae

RIGHT TO v. ALahama, 300° 0,8. AT FREE AMANART HEARING, BS) A % iy vas a

RETROACTIVE ONLY . "PRELIMINARY HEARINGS HELD AFTER

(Footnote 14 CONTINUED ON NEXT PAGE,)

coats ‘a ms

Rene ~~

NoR HAS PETITIONER SHOWN THAT THE DECISION BELOW IS IN CONFLICT

WITH THE DECISION OF ANY OTHER CircurT Court, ON THE CONTRARY, THE

(Footnote 14 CONTINUED FROM PREVIOUS PAGE,)

Mac E | S, 41 » ’ :

ug Lys CrrET ath ay persis 1¢ vay iat a pry

Lede es art UNITED STATES 38S, Cr,

Birr rer pees ayery 0 A epee be AFTER A

site Sct Y

Ine 42 5U fms nent of CH} 395

Ct, 20 3 L. Ep, 2p oF tit Heb Y bar LORNA SCOPE OF

A ite! TO AN ARREST 1S APPLIED pRosPecriVELY ONLY TO

EARCHE CHRRIN F THE gDA F OF A ec) ) > 7 tid the

RrATES, 305 U B35" Of EF, 14 ge! 23 (.E DZD 1b ( a? REQUIRE-

ENT OF ON rhe RECORD eS. PLEA COLLOQUY ARTIC A N

H Rr ares, SOU DSS. aby. sie Ye. 25". Epap

PPLIED ONLY TO THOSE PLEgS Eyre gr ATER sta. :

lal > ad !

é LiED: 2E 344

Sp 242 ® TED, D576 ¥67), HOLDING THAT. Pee US He BIS

PING CONSTITUTES A “SEARCH,” APPLIED ONLY sf° 55h CHES Ag ER apart

F (bE iS) Ny Fun B By bre Oh, 2

fs ED sf 4. Aspe mOUDING 1H EIN 18°" B8 S,

6, 20 D.2D (1968) REGARDING DA, 28 U.S. 37 IN STATE

COURTS OF EVIDENCE OBTAINED THROUGH ILLEGAL W1RETAPS APPLIED TO

Rea GOR RIES AFTER _T Gi Lipp: N IN LEE) sR)

si: Se ee a da aoe ae oie

oF ins 4 olay v . tH ree: SUPRA (APPLIED, ctiaa == RIGHT TO

s]0N fh AT LINE PS To ee ease SU ater: se hss if

Bt ae Pr rasta 575

i . A 1 Beer L.ED, 3D gh ( a yar: LE TO

RIALS a ia in OR Al THE DATES OF ECISi04, BoBF | ee

; fre ead Teo eR Hea sage te AoA DUg NOU, PETROAGT

WHICH PROHIBITED ADVERSE COMMENT ON A DEE ENDANT FAILURE 7 TO sTERTSFY

a] qRIAL) 3 pi ETRE Me nbn Re bape Ge Bi

»ED (1561) Is APPLICABLE ONLY . CASES

ON DIRECT APPEAL AT THE TIME OF THE DECISION),

» 392

RETROACTIVITY STANDARD USED BELOW HAS BEEN FOLLOWED BY ALL THE CIR-

CUITS, WITH NO CONFLICT AMONG THEM ON THIS POINT, +>

IN SUM, IT IS CLEAR THAT THE DECISION OF THE COURT BELOW WAS

IN FULL COMPLIANCE WITH THIS CoURT’S WELL-SETTLED RETROACTIVITY

GUIDELINES AND IN ACCORD WITH THE STANDARD USED BY ALL THE Circuits,

, 96/7 F.2p 01 (UC, 1977),

"863 poole

ge ASE A ye

| D ; ig! (Ob 73)

ihe a7 Beats 2a if ath Ky ° D co iS,

i ee i 11694" hee Cik. bare

ie)

se SE a te ge dea ite:

16), THIS COURT DETERMINES THAT THE FAILURE TO CHARGE ON VOLUN-

TARY MANSLAUGHTER VIOLATED PETITIONER'S DUE PROCESS RIGHTS SUCH

ERROR WAS CERTAINLY HARMLESS BEYOND A REASONABLE DOUBT, [HE JURY

ELOW RETURNED A VERDICT OF FIRST DEGREE MURDER AGAINST PETITIONER,

URELY, IF THE JURY WAS INCLINED TO SHOW ANY MERCY FOR PETITIONER,

T WOULD HAVE FOUND PETITIONER GUILTY ONLY OF SECOND DEGREE MURDER,

HIS WAS _THE APPROACH TAKEN BY THE PENWSHLYANL A UPREME ROURT AN

9 Eto, Gir is Sapa : : ian RT RE ata 2 AR ge

T JECT HARM

ERROR ARGUMENT, , AT Jig: yer IN SCHNEBLE, THE COURT WROTE:

UDI ¢ 10Us APPLICATION OF THE HARMLESS ERROR RULE DOES NOT REAUIRE

THAT WE LDU GE ASSUMPTIONS gr IRRATIONAL JURY BEHAVIOR, ’

31-432; 92S, Ct, at 1059, IN LIGHT OF THE OVERWHELMING EVI-

DENCE OF FIRST DEGREE MURDER PRESENTED AT TRIAL BELOW, AND THE

FAILURE OF THE JURY TO RETURN A VERDICT OF SECOND DEGREE MURDER,

AN INSTRUCTION ON VOLUNTARY MANSLAUGHTER COULD NOT, RATIONALLY, HAVE

Aayg . ree ee HUS, Le RECORD MAKES PLAIN THAT PETITION ReNAS

NO FasUBLCED BY” Tus, Mf TED CHARGE. (CHAPMAN CAL LEORILE,

Se a a ti H/T

THUS, PETITIONER HAS PRESENTED NO "SPECIAL op IMPORTANT REASONS”

FOR GRANTING HIS PETITION, WHICH SHOULD BE DENIED, U,S, Sup, Cr.

Ruce 19, 28 U.S.C.A.; Rice v. Stour Crry Nemorra: Cemetery, 349

U.S, 70, 75 S, Cr, 614, 99 L.Ep, 897 (1955),

CONCLUS LON

FOR THE FOREGOING REASONS,

THAT THE COURT NOT ISSUE A WRIT

SION BELOW,

2400 Centre Seuare West

PHILADELPHIA, PENNSYLVANIA 19102

RESPONDENTS RESPECTFULLY REQUEST

OF CERTIORARI TO REVIEW THE DECI-

RESPECTFULLY SUBMITTED,

preven H GOLDBLATT

EPUTY DIstRIcT ATTORNEY FOR Law

P/\UL S, DIAMOND

Assistant District ATTORNEY

MICHAEL. F, HENRY

CHIEF, MOTIONS DIVISION

DWARD G..RENDELL

ISTRICT ATTORNEY

PREME COURT OF THE UNITED STATES

GERALD R. Ali, : TERN, 1978

ETITIONER ;

Vv,

JOSEPH IAZURKIEWICZ )

AND ;

JuF ATTORNFY GENERAL OF :

ENINSYLVANT

AND

TS RAREBATA COIRRYEY OF 0, 78907

age ESPONDENTS

CERTIFICATION OF SERVICE

1, STEVEN H, GOLDBLATT, ESQUIRE, CounseL FoR RESPONDENTS, HEREBY

CERTIFY THAT I HAVE CAUSED A COPY OF THIS BRIEF IN OPPOSITION TO

PETITION FOR WRIT oF CERTIORARI TO THE UNITED STATES CouRT OF APPEALS

FOR THE THIRD CIRCUIT TO BE SERVED UPON NORRIS BARAN, ESQUIRE, ATTORNEY

FOR PETITIONER, BY DEPOSITING FIVE COPIES IN THE UNITED STATES MAIL,

ESQUIRE,

690 Penn Square Buitpinc, 1317 Ficpert Street, PHILADELPHIA, PENNSYL-

VANIA, 19107, on MarcH 1, 1979,

First Crass, Postace Preeaip, Appressep To MORRIS PAUL BARAN,

STEVEN KH, GOLDBLATI

SWORN TO AND SUBSCRIBED :

BEFORE ME THIS » DAY

oF Marcu A.D, 1979

TOTARY PUBLIC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.