# Opposition — Cain v. Mazurkiewicz

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2161%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 971

## 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

20

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)

16
11,16
12-13,1
17

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)

IV

UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
UNITED STATES
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)

15
17

1,12

PASSIM

PASSIM

14

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
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWE AL TH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH

Vv,

vy

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)

VI

PASSIM
14
13
13
13
14
13
13

14°
PASSIM

COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH
COMMONWEALTH

COMMONWEALTH .V,

COMMONWEALTH
COMMONWEALTH

STATUTES

26 U.S.C. § 7302

RuLes

V,
V,
Vv,
V,
V,

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

15

19

COUNTER-STATEMENT OF THE ISSUES PRESENTED
1 WASCAUGHTER RY THOUT AK
ff

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

10

——

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!

ll

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

(C) THE EFFECT ON THE ADMINISTRATION OF uvUS-

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,

12

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);

13

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

14

a

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

13

AFFECT THE TRUTH“DETERMINING PROCESS AND THOSE WHICH DO

13H ANKERSON _Y, NORTH » SUPRA (PROSECUTION MUST DISPROVE
URDER fig’ fee “ALONG, HOLD ay
v1

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,)

15

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
a4
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,)

16

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

17

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

18

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),

19

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

20

Ss

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2161%3A2. Public record. Not legal advice.