Appendix — Cuyler v. Sullivan

. a Supreme Court, U. &7%

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e MICHAEL RODAK, JR., CLERK

J

IN THE

SUPREME COURT OF THE UNITED STATES

6 TERM, 197_

0. —_B8-1832

JULIUS T. CUYLER, SuPERINTENDENT

AND

e DISTRICT ATTORNEY OF PHILADELPHIA,

ETITIONER

Vv,

JOHN SULLIVAN, ResponpenT

e

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

a TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

‘ MICHAEL F. a ss

ION

REVEN i AStBB ArT .

DWARD G) RENDELL ORNEY FoR Law

ISTRICT ATTORNEY

g 100 Centre Sauare West

HILADELPHIA, PENNSYLVANIA 19102

lA

Appendix A

UNITED STATES COURT OF APPEALS

For tas Turep Crecvrir

No. 78-1411

UNITED STATES OF AMERICA ex rel.

JOHN SULLIVAN,

Appellant,

Vv.

JULIUS T. CUYLER, Superintendent, State Correc-

tional Institution, Graterford, Pennsylvania, and THE

DISTRICT ATTORNEY OF PHILADELPHIA

COUNTY

SUR PETITION FOR REHEARING

Present: Serrz, Chief Judge, and ALDISERT, ADams, GrBBons,

Roseyy, Hunter, Weis, GarstH and HicerysotHam,

Circuit Judges, and Gsrry, District Judge.*

The petition for rehearing filed by Appellees in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all the

other available circuit judges of the circuit in regular

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By THE COURT,

ALDISERT

Judge

Dated: March 12, 1979

“Honorable John F. Gerry, ot the United States District Court for the

District of New Jersey, sitting by designation.

2A

GarTH, Circuit Judge, with whom Apams and Roseyy,

Circuit Judges, join, dissenting from order denying

petition for rehearing:

The issue presented by this appeal is whether the ap-

pellant Sullivan was deprived of his Sixth Amendment

right to effective assistance of counsel, because the pri-

vately retained attorneys who represented him at his trial

also represented other defendants, who had been charged

with Sullivan but who were tried separately and at a date

subsequent to Sullivan’s conviction of murder. A panel of

this court has ordered that a writ of habeus corpus issue,

discharging Sullivan from state custody unless the state

retries him within a reasonable time. The panel held that

this case involved ‘‘dual representation’’ of Sullivan and

the defendants in the subsequent trial, and that ‘‘[b]ecause

we cannot say on this record that the dual representation

raised no possibility of prejudice or conflict of interest,

however remote, our prior cases compel reversal.’’

In reaching this conclusion, the panel relied principally

on Umted States ex rel. Hart v. Davenport, 478 F.2d 203

(3d Cir. 1973). As in this case, the defendant in Hart was

represented by privately retained counsel. Recognizing

that in the absence of state action, the attorney’s ineffective

assistance may not be attributed to the state under the

fourteenth amendment, as it incorporates the sixth amend-

ment, this Court held in Hart that,

[Where the questioned conduct of such attorney takes

place in the presence of the court or the state attorney,

the state action basis for vindication of the alleged

fourteenth amendment deprivation is the failure of the

state prosecutor or state court to take necessary cor-

rective action.

Id. at 210. Where, however, there is no indication that

‘*the state’s attorney or the court had knowledge of the

alleged deprivation,’’ or that the proceedings are funda-

mentally unfair because ‘‘the attorney’s conduct is so lack-

-_—- - ——— > —_—

3A

ing in competence or good faith that it [should have]

shocked the conscience of the court or prosecutor as officers

of the state,’’ the requisite state involvement is missing.

See id. See also Fitzgerald v. Estelle, 505 F.2d 1334, 1336-

38 (Sth Cir. 1975) (en banc). But although state action

was found to be present in Hart, there would appear to be

no evidence in the present case that the trial judge or the

prosecutor was aware, or should have been aware, of the

alleged conflict of interest. And certainly nothing in

the record suggests that Sullivan’s representation by two

of Philadelphia’s best known trial attorneys was so grossly

deficient as to render the proceedings fundamentally unfair.

I recognize that judges elsewhere have taken the posi-

tion that whenever retained counsel’s representation is

ineffective, state action exists ‘‘because the state adjudi-

catory machinery is inextricably intertwined with the con-

duct of an accused person’s retained attorney.’’ Fitz-

gerald, supra, at 1345 (Godbold, dissenting). But as I

understand it, that is not the law in this Circuit or in any

other court of appeals. Nor am I convinced that such an

approach to the constitutional requirement of state action

comports with present Supreme Court guidelines. In any

event, if the majority now wishes to renounce the position

taken in Hart in favor of such a rule, en banc consideration

would appear to be warranted.

I believe that en banc reconsideration is appropriate

for a second reason as well. Hart, upon which the panel

lied in adopting a standard under which a conflict of

interest exists whenever there is a possibility of prejudice,

established the standard for a jomt, as distinct from a

dual, representation case. Joint representation, as I under-

stand it, is the representation by the same attorney of two

or more defendants at the same trial. Dual representation,

on the other hand, is the representation by the same at-

torney of two or more defendants, each of whom is tried

separately and at different times. Hence, I agree with the

panel that Sullivan presents a case of dual representation.

4A

But Hart, together with all of the other cases upon which

the panel has relied, involves joint representation.

I believe that there are significant and relevant dis-

tinctions that exist between joint representation cases and

dual representation cases, none of which have been explored

by the panel. In this statement sur petition for rehearing,

I do not think it appropriate to explicate all of the differ-

ences which exist. That task is for the panel. I think it

important, however, to point out that at the very least,

actual prejudice must be found before relief may be

afforded on a dual representation claim of the type ad-

vanced by Sullivan. I do not believe that the mere posst-

bility of prejudice, which is the standard under Hart for

a case involving joint representation, should be woodenly

applied in a case where the defendants were tried sepa-

rately in individual trials. Moreover, I believe that a de-

fendant who claims that his attorney’s representation of

other persons at different and discrete trials, deprived him

of effective assistance of counsel at his own trial, must show

that he suffered actual prejudice which would have had a

material effect on the outcome of his own trial.

Whether or not the ‘‘finding’’ by the Sullivan panel of

actual prejudice is an appropriate or correct finding in the

circumstances of this case does not diminish my concern

for the standard enunciated-in the opinion. I observe that,

prior to this case, we have never established any standard

for a dual representation claim, and that to my knowledge,

no other Circuit has formulated such a standard. Our

decision will affect the conduct of attorneys and litigants in

innumerable multi-defendant cases. I therefore believe that

it should be the court em banc which formulates the ap-

propriate standard for cases involving claims of dual rep-

resentation.

We should not be oblivious to the practical implications

of the panel’s decision either. In the wake of Sullivan,

which disregards the prerequisites articulated in Hart for

a finding of state action and at the same time permits a

SA

conflict of interest in a dual representation case to be pred-

icated on the mere possibility of prejudice, however re-

mote, it will be necessary for prosecutors and trial court

judges within our jurisdiction to insist that co-defendants

never be represented by the same privately retained coun-

sel, even when they are to be tried separately. If prosecu-

tors and judges fail to insist upon separate representation,

they run the risk of having convictions overturned, as trial

strategy decisions by the attorney, which in retrospect may

arguably be seen as favoring one of his clients over the

other, are attributed to the state for purposes of the sixth

and fourteenth amendments, ‘‘even if the defense strategy

actually chosen would not be subject to attack on the ground

of ineffective assistance of counsel had the choice been made

by independent counsel.’’ Slip op. at 14-15.

It is for these reasons that I have voted to grant the

petition for rehearing.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circust

(A.O. U. S. Courts, International Printing Co., Phila. Pa.)

1B

Appendix B

UNITED STATES COURT OF APPEALS

Fos tas Tamp Crmevir

No. 78-1411

UNITED STATES OF AMERICA ex rel.

JOHN SULLIVAN,

Appellant,

Vv.

JULIUS T. CUYLER, Superintendent, State Correctional

Institution, Graterford, Pennsylvania, and THE

DISTRICT ATTORNEY OF PHILADELPHIA

COUNTY,

Appellees.

Appeal From tHe Untrep Starts Districr Court ror THE

Eastern Distgicr or PENNSYLVANIA

(D.C. Civil No. 77-2527) ~

Argued November 16, 1978

Before: AupiserT and Huyrsr, Circuit Judges, and

Gerry, District Judge.*

(Opinion filed February 14, 1979)

Marilyn J. Gelb, Esquire

1314 Chestnut Street

15th Floor ‘

Philadelphia, PA 19107

Counsel for Appellant

*Honorable John F. Gerry, of the United States District Court for the

District of New Jersey, sitting by designation.

2B

Michael F. Henry, Esquire

Chief, Motions Division

Steven H. Goldblatt, Esquire

Deputy District Attorney for Law

Edward G. Rendell, Esquire

District Attorney of Philadelphia

Suite 2400, Centre Square West

Philadelphia, Pennsylvania 19102

Counsel for Appellees

OPINION OF THE COURT

Gerry, District Judge.

This appeal from the denial of a petition for habeas

corpus requires this court to consider again the troubling

issue of dual representation of multiple criminal defendants

by the same counsel. Petitioner John Sullivan claims,

inter alia, that he was denied his sixth amendment right to

effective assistance of counsel at trial because his attorneys

also represented his co-defendants. The district court con-

« cluded that there had been no dual representation and

denied the petition. We reverse.

) s

Petitioner Sullivan was convicted of two counts of first

degree murder in 1967 and sentenced to life imprisonment.

He has since then continuously attacked his conviction in

state and federal court. Before reaching the merits, we

must review the confusing series of direct appeals and

collateral attacks that form the record in this case.

On the evening of June 17, 1966, John Gorey, a minor

labor union official, and Rita Janda, his female companion,

were shot to death in Gorey’s office at the Philadelphia

headquarters of Teamsters’ Local 107. After a medical

examiner’s inquest on November 3, 1966, petitioner and

two others, Gregory Carchidi and Anthony DiPasquale,

were arrested and indicted for the murders.

3B

Two attorneys, G. Fred DiBona! and A. Charles

Peruto, entered appearances on behalf of each of the three

defendants. Petitioner, in June, 1967, was the first to come

to trial. The defense rested at the close of the Common-

wealth’s case without presenting any evidence. After the

two week trial, the jury convicted petitioner and fixed his

punishment at life imprisonment. Carchidi and DiPasquale

were later acquitted in separate trials.*

A three judge panel of the Court of Common Pleas

denied petitioner’s post trial motions on July 15, 1968,

with one judge voting to grant a new trial. After sen-

tence was imposed, petitioner filed a direct appeal to the

Pennsylvania Supreme Court. He also filed an applica-

tion in the trial court for a Writ of Error Coram Nobis

which was denied. His appeal was submitted to the su-

preme court on briefs on November 26, 1969. On Decem-

ber 29, 1971, an equally divided court affirmed his convic-

tion. Commomwealth v. Sullivan, 446 Pa. 419, 286 A.2d

898 (1971). Petitioner, through new counsel, who con-

tinues to represent him in this court, twice sought to

persuade the supreme court to reconsider its decision.

Both applications were denied* ~

Meanwhile, petitioner Sullivan was not content to

await the outcome of his state appeal but launched, without

benefit of counsel, a collateral attack upon his conviction by

petitioning for habeas corpus relief in federal court. His

petitions were dismissed.‘ Appellate review and federal

1. G. Fred DiBona is now a judge of the Court of Common Pleas in

Philadelphia.

2. Carchidi was acquitted after trial on January 26, 1968; DiPasquale on

March 14, 1968. Both were represented at trial by Peruto with Judge DiBona

assisting him.

3. See Commonwealth v. Sullivan, 472 Pa. 129, 180, 371 A.2d 468, 492

(1977) (concurring and dissenting opinion of Pomeroy, J.).

4. United States ex rel. Sullivan v. Rundle, No. 69-244 (E.D. Pa., June

12, 1969) and Unsted States ex rel. Sullivan v. Rundle, No. 69-452 (E.D. Pa,

Sept. 17, 1969), certificate of probable cause denied, Misc. No. 1377 (3d Cir.,

Dec. 31, 1969), were dismissed because petitioner’s direct appeal was still

pending. United States ex rei. Sullivan v. Johnson, Civil Action No. 73-1694

(ELD. Pa., Sept. 11, 1973) was dismissed for failure to exhaust state remedies.

4B

habeas corpus having proved unavailing, petitioner col-

laterally attacked his conviction in the Pennsylvania courts.

On October 30, 1973, counsel filed a petition for post-convic-

tion relief under the Pennsylvania Post-Conviction Hear-

ing Act (PCHA), 19 P.S. § 1180.1 et seq. Five days of

evidentiary hearings were held on the petition; Sullivan,

Carchidi, Peruto, Judge DiBona, the trial judge, and sev-

eral other witnesses testified. On November 6, 1974, the

PCHA court ruled that petitioner had been denied effec-

tive assistance of counsel on appeal and permitted him to

file a second direct appeal to the Pennsylvania Supreme

Court. All other grounds for relief, including those raised

here, were rejected.

Petitioner filed his second appeal nunc pro tunc; he

also appealed from the denial of post-conviction relief on

other grounds. The Commonwealth cross-appealed the

decision to permit a second direct appeal to be filed. All

three. appeals were consolidated and argued before the

supreme court on January 16, 1975. On February 28, 1977,

the court issued an opinion affirming both petitioner’s origi-

nal conviction and the denial of post-conviction relief.

Commonwealth v. Sullivan, 472 Pa. 129, 371 A2d 468

(1977). ;

Having exhausted state remedies, Sullivan filed this

petition for habeas corpus in the United States District

Court for the Eastern District of Pennsylvania. He al-

leged the following grounds for relief: (1) that the admis-

sion into evidence of color slides of the victims’ bodies was

a denial of due process; (2) that the factual basis under-

lying his conviction was so totally devoid of evidentiary

support as to deny him due process; (3) that defense coun-

sel had a conflict of interest because they also represented

his two co-defendants; (4) that counsel was ineffective

for failing to object to certain testimony; (5) that counsel

was ineffective for failing to reserve objections to the of-

5. Respondents concede in their brief that petitioner has exhausted state

remedies.

5B

fering of a secret memorandum to the trial judge; (6) that

the trial judge erred in his instructions to the jury so as to

deny due process; and (7) that the failure of the prosecu-

tion to disclose to the defense certain evidence denied him

due process. The petition was referred to a United States

magistrate for report and recommendation. The magis-

trate found that all grounds except dual representation

were without merit. He recommended that the writ issue

because petitioner’s trial counsel also represented his co-

defendants and the record disclosed a possibility of preju-

dice or conflict of interest arising from this dual represen-

tation.

The district judge denied the petition. He accepted

the magistrate’s recommendations on every ground as-

' serted except dual representation. As to that ground, he

adapted the conclusion of the Pennsylvania Supreme Court

that there had been no dual representation. He also found

that no conflict of interest actually existed. Petitioner ap-

peals from this order. Because we believe reversal is com-

pelled on the issue of dual representation and conflict of

interest, we do not reach the other grounds asserted.*

IL.

The evidence underlying petitioner’s conviction was

entirely circumstantial. The Pennsylvania Supreme Court

summarized it in the light most favorable to the Common-

wealth as follows:

The chief prosecution witness, one Francis Me-

Grath, was employed as a janitor at the union hall

where the bodies were eventually discovered. On July

17, 1966, he arrived at.work approximately 6:00 P.M.

and parked his automobile in the lot adjacent to the

building. At that time, he specifically observed two

6. Although we viewed the color slides of the victims’ bodies which were

introduced at trial, we need not decide whether their admission into evidence

denied petitioner his constitutional right to a fair trial. No doubt the court

on retrial will be better placed to consider this close evidentiary question

which has twice divided the state supreme court.

6B

other vehicles on the premises. One was owned by

appellant and the other was being used at the time by

one Anthony DiPasquale. After alighting from his

car, McGrath noticed appellant looking out onto the

parking lot from the window of a second floor office

normally used by other union officials. The witness

then entered the building and proceeded to the second

floor to commence his duties. Appellant was still

seated by the window when McGrath entered that office.

Sullivan inquired about the janitor’s presence and in-

structed McGrath to wait until Sunday night to clean,

since a union meeting was scheduled for that date and

the building would require cleaning after the gather-

ing. McGrath ignored the suggestion and continued

collecting the trash from the offices. The witness then

took the refuse outside the building. When he re-

turned, appellant was still seated at the window.

At this time, both Sullivan and McGrath observed

John Gorey and Rita Janda arrive at the union hall

in Gorey’s car and enter the building. McGrath then

began cleaning the conference room, located approxi-

mately 75 feet from Gorey’s office. Shortly thereafter,

Gorey appeared and had a brief conversation with

McGrath. Immediately after Gorey left the conference

room, appellant appeared in the doorway, through

which Gorey had iust passed, and again questioned

McGrath about the cleaning and suggested he defer

his activities until Sunday afternoon. During this

brief conversation, Gregory Carchidi, another janitor,

entered the conference room. No conversation ensued

between Carchidi and Sullivan but Carchidi repeated

appellant’s urgings to leave the work until Sunday.

Sullivan then left the room through the same door

which Gorey had exited but Carchidi remained and

seated himself behind the desk.

Within several minutes, the witness testified he

heard sounds like firecrackers going off in rapid sne-

7B

cession. McGrath started to question Carchidi about

the disturbance but was abruptly instructed to ‘‘Get

out of the building and don’t say nothing’’ (sic).

McGrath left the union hall and noticed four cars

other than his own parked in the lot. These were

recognized as belonging to DiPasquale, Gorey, Carchidi

and appellant. McGrath drove off but returned to the

premises within 15 minutes. Only Gorey’s car re-

mained in the lot. Upon re-entering the building, he

found the offices closed, the conference room locked

and the lights out.

The victims’ bodies were discovered the following

morning. Gorey had been shot four times and Janda

six times, the shots being fired from close range. The

ballistics studies established two separate guns were

employed in the homicides but the weapons were never

recovered.

Additional testimony disclosed that the telephone

lines had been arranged so that regular incoming calls

would ring in the room in which appellant was seated.

A second line with a different call number had been

prearranged by Gorey to ring in his office so that he

could receive an anticipated call from Joseph Vernick

at 7:00 P.M. One Irene Glenn testified for the Com-

monwealth that she dialed the regular union phone

number about 6:15 P.M. that evening and a man

answered identifying himself as Gorey. A scrap paper

found in the wastebasket alongside the desk where

appellant had been seated prior to the victim’s arrival

contained Ms. Glenn’s name and telephone number. It

was uncontested that the handwriting was that of

appellant. Moreover, one Joseph Vernick testified that

he called Gorey’s office at a specially arranged time

but received no answer despite his repeated attempts

between 7:15 and 8:15 P.M. This evidence, coupled

with the medical examiner’s testimony, indicated that

the time of death could have been approximately 7 :15

P.M. !

8B

Commonwealth v. Sullivan, supra, 472 Pa. at 147-49, 371

A.2d at 477. ‘See also Commonwealth v. Sullivan, supra,

446 Pa. at 424-27, 286 A2d at 898-900.

Petitioner did not testify and no evidence was intro-

duced on his behalf.

OL

Our first task is to determine whether there was dual

representation: that is, whether petitioner was in fact rep-

resented by an attorney or attorneys who also represented

one or both of his co-defendants. The Pennsylvania Su-

preme Court considered this issue on petitioner’s second

appeal and decided:

Appellant first claims that he was denied effective

assistance of trial counsel because his attorneys also

represented two co-defendants who were tried sep-

arately for the crime... .

Upon review of the record from the PCHA pro-

ceedings, we find appellant has failed to prove the

requisite elements of his claim. First, the testimony

establishes that there was no dual representation in

the true sense of the term, i.e., the same counsel actively

represented co-defendants. Mr. Peruto testified that it

was Mr. (now Judge) DiBona who served as chief

counsel for appellant during trial and made all de-

cisions relevant to Sullivan’s defense while he, Pernto,

was merely assisting. These functions were reversed

at the trial of the co-defendants where Mr. Peruto was

chief counsel and Judge DiBona the assistant. Thus,

Judge DiBona served only a minor role in the trial of

the co-defendants while devoting his primary efforts

to the Sullivan case. This conclusion is supported by

Judge DiBona’s statements that his stewardship was

in no way affected by the consideration of the co-

defendant’s cases but was solely a product of what he

considered to be the best course in his representation

9B

of Sullivan. We therefore hold that there is ab-

solutely no evidence that a conflict existed.

472 Pa. at 161-62, 371 A.2d at 483.

Respondents urge that this conclusion is a finding of

fact by a state court after a full hearing which is entitled

to a presumption of correctness and should be accepted by

this court. Petitioner argues that we should reject it be-

cause the record as a whole does not support the supreme

court’s factual determination. The magistrate accepted

petitioner’s position while the district judge accepted re-

spondents’. We believe both were mistaken in their ap-

proach to this problem. While it is true that state court

factual findings are entitled to deference in this court

unless they are not fairly supported by the record as a

whole, the Supreme Court has defined ‘‘facts’’ very nar-

rowly in this context. In Townsend v. Sain, 372 U.S. 293,

309 n.9 (1963), the principal case on the scope of federal

court review of state findings on habeas corpus, the Court

defined the findings entitled to deference as follows:

By ‘‘issues of fact’? we mean to refer to what are

termed basic, primary, or historical facts: facts “‘in

the sense of a recital of external events and the credi-

bility of their narrators... .’’ So called mixed ques-

tions of fact and law, which require the application of

a legal standard to the historical-fact determinations,

are not facts in this sense. (Citation omitted. )

The Court went on to emphasize:

Although the district judge may, where the state court

has reliably found the relevant facts, defer to the state

court’s findings of fact, he may not defer to its findings

of law. It is the district judge’s duty to apply the

applicable federal law to the state court findings inde-

pendently.

362 U.S. at 318.

10B

Properly speaking the supreme court’s conclusion that

there was no dual representation was not a finding of fact

but a legal conclusion—the application of a legal standard

to the facts developed on the record. We conclude that

there was dual representation in this case. :

Both Judge DiBona and Peruto entered appearances

on behalf of petitioner and his two co-defendants shortly

after their arrest and indictment. Sullivan had been repre-

sented at the inquest by another attorney but could not

afford to retain him to represent him on the murder charge.

Sullivan testified at the PCHA hearing that while he was

imprisoned awaiting trial, he discussed his inability to

afford counsel with his two co-defendants who told him

they had already made arrangements with ‘‘Mr. Peruto

and his partner’’ (Judge DiBona was not identified to peti-

tioner at this time), and that they would represent all three

defendants. They told him not to worry, and he agreed to

the arrangement. Neither Sullivan nor his family paid

any counsel fee to Judge DiBona and Pernto.’

A unified defense was prepared. One investigation

was conducted on behalf of all three defendants. On

numerous occasions the three defendants met jointly with

both attorneys and discussed the preparation of a defense.

The three defendants also met the investigator hired by

counsel together and discussed their defense.

When Sullivan came to trial, Judge DiBona was his

principal trial counsel who made opening and closing

speeches and examined witnesses.* Peruto, by prearrange-

ment, assisted him. Judge DiBona considered that he and

Peruto were ‘‘associate counsel’’ at this trial and at the

trials of the two co-defendants. Peruto was present at

7. The matter of who paid these privately retained attorneys was never

developed at the PCHA hearing. Apparently, friends of the defendants raised

money from contributions and “selling chances,” ie., holding a lottery. What

other sources of funds there may have been remains unclear.

_ & It is unclear how it was decided that Judge DiBona would be chief

trial counsel. Peruto testified that a meeting was held at which each defendant

was asked which lawyer he would prefer to try his case, and Sullivan chose

Judge DiBona because of his greater age and experience. Sullivan denied this.

He claims to have had no idea that one lawyer was to have principal respon-

sibility for his case; he considered them equally involved in the trial.

11B

counsel table throughout the trial. He examined prospec-

tive jurors on voir dire. During the trial, he consulted with

petitioner, and he and Judge DiBona frequently conferred

on matters of trial strategy. He argued motions and ob-

jections to the court virtually every day of the trial. After

the Commonwealth had completed its proofs, petitioner and

counsel had a lengthy private conference on defense

strategy, at which Peruto advised petitioner not to testify

and not to present witnesses in his defense; this course was

eventually chosen. After the verdict was returned, Peruto

argued the penalty phase of trial to the jury, which under

Pennsylvania law decides between life imprisonment and

death in first degree murder cases.

The state court based its finding that there was no

dual representation on its assessment of Peruto’s role in

petitioner’s defense. It concluded that his role was 30

minor that he did not represent Sullivan and that the de-

fense was the sole responsibility of Judge DiBona. We

believe that an attorney who enters an appearance on be-

half of a criminal defendant, consults with him confiden-

tially for the purpose of preparing a defense, investigates

his case, aids in the pretrial preparation of his defense,

appears at his trial, participates in the selection of the

jury that is to decide his fate, argues motions and objec-

tions, confers with co-counsel on trial strategy, offers the

defendant legal advice, including advice on whether he

should testify or present evidence in his defense, and argues

the issue of penalty, a matter of life and death, to the jury

on thé defendant’s behalf must be said to represent that

defendant and owe to him all the duties an attorney owes

to a client in a criminal case. We find that Peruto repre-

sented Sullivan as well as Carchidi and DiPasquale.

The state court also based its finding of no dual repre-

sentation on the assumption that Judge DiBona played

such a minor role in the trials of the other two defendants

that he could be said to represent Sullivan alone. This con-

flicts with Judge DiBona’s understanding of his role: he

testified that he and Peruto were ‘‘associate counsel in all

12B

three cases.’’ It also overlooks the fact that while Peruto

eventually acted as principal trial counsel to both Carchidi

and DiPasquale that this arrangement was made after Sul-

livan’s trial. At the Sullivan trial, Judge DiBona told the

court that he also represented Carchidi, to whom he re-

ferred as ‘‘my other client,’’ while Peruto represented

that he was counsel to DiPasquale as well as co-counsel to

Sullivan. Thus, at the time of petitioner’s triai—which is

the critical time—Judge DiBona saw himself as ‘‘chief

counsel’’ not only to Sullivan, but to his co-defendant Car-

chidi as well, and Peruto shared this view.

Whatever may have been the extent of each attorney’s

participation in the trials of the various defendants, we

are satisfied that it was sufficient to establish that both at-

torneys represented all three defendants. Petitioner was

represented by two attorneys, both of whom also repre-

sented his two co-defendants and who seem to have viewed

themselves as a defense ‘‘team’’ acting on behalf of all

three of the accused.

IV.

A finding of dual representation does not, without more,

require reversal. The standard for determining whether

representation of co-defendants by the same attorney is a

denial of sixth amendment rights was set in this circuit in

Walker v. United States, 422 F.2d 374, 375 (3d Cir.) (per

curiam), cert. denied, 399 U.S. 915 (1970).

(RJepresentation of co-defendants by the same at-

torney is not tantamount to the denial of effective as-

sistance of counsel guaranteed by the sixth amendment.

There must be some showing of a possible conflict of

interest or prejudice, however remote, before a review-

ing court will find the dual representation constitu-

tionally defective.

Numerous recent cases in this circuit have repeated this

standard and made clear that actual prejudice or conflict

— eC Ai, A et a mw —- ae me rem ee

13B

of interest need not be shown.? The mere possibility, how-

ever remote, is sufficient.

This rule recognizes that ‘‘(t]he right to counsel guar-

anteed by the sixth and fourteenth amendments contem-

plates the services of an attorney devoted solely to the

interests of his client.’’ United States ex rel. Hart v.

Davenport, 478 F.2d 203, 209 (3d Cir. 1973). Anything

less must be regarded as an infringement of the right to

counsel. And the Supreme Court has said: ‘‘The right to

have the assistance of counsel is too fundamental and ab-

solute to allow courts to indulge in nice calculations as to

the amount of prejudice arising from its denial.’’ Glasser

v. United States, 315 U.S. 60, 75-76 (1942).

The Walker rule also recognizes that after the fact it

is often difficult or impossible to determine whether a de-

fendant has been prejudiced by dual representation. Dual

representation interferes with an attorney’s independent

professional judgment. The harm is often in what it tends

to prevent an attorney from doing on behalf of his client.

Holloway v. Arkansas, 485 U.S. 475, 489-90 (1978). For

example, an attorney with divided loyalties cannot negoti-

ate a plea agreement on behalf of one client which includes

an agreement by that client to testify against a co-defend-

ant the attorney also represents. Id. He may refrain

from introducing evidence favorable to one client but harm-

ful to another; or he may refrain from challenging evi-

dence that harms one client but is helpful to another. These

and similar conflicts of interest ordinarily do not appear

in the record. The Supreme Court recently discussed this

problem in Holloway v. drkansas, supra, and noted:

In the normal case where a harmless error rule is

applied, the error occurs at trial and its scope is readily

9. United States v. Levy, 5377 F.2d 200 (3d Cir. 1978); United States v.

Dolan, 570 F.2d 1177 (3d Cir. 1978) ; United States ex rel. Horta v. DeYoung,

523 F.2d 807 (3d Cir. 1975) (per curiam) ; United States ex rel. Hart v.

Davenport, 478 F.2d 203 (3d Cir. 1973); United States v. Rispo, 470 F.2d

1099 (3d Cir. 1973); United States v. Donovan, 464 F.2d 495 (3d Cir.), cert.

denied, 409 U.S. 1044 (1972); Government of the Virgin Islands v. John,

447 F.2d 69 (3d Cir. 1971); United States ex rel. Small v. Rundle, 442 F.2d

235 (3d Cir. 1971); Unsted States ex rel. Darrah v. Brierley, 415 F.2d 9

(3d Cir. 1969).

14B

identifiable. Accordingly, the reviewing court can

undertake with some confidence its relatively narrow

task of assessing the likelihood that the error materially

affected the deliberations of the jury. But in a case of

joint representation of conflicting interests the evil—

it bears repeating—is in what the advocate finds him-

self compelled to refrain from doing, not only at trial

but also as to possible pretrial plea negotiations and

in the sentencing process. It may be possible in some

cases to identify from the record the prejudice result-

ing from an attorney’s failure to undertake certain

trial tasks, but even with a record of the sentencing

hearing available it would be difficult to judge intelli-

gently the impact of a conflict on the attorney’s repre-

sentation of a client. And to assess the-impact of a

conflict of interests on the attorney’s options, tactics

and decisions in plea negotiations would be virtually

impossible. Thus, an inquiry into a claim of harmless

error here would require, unlike most cases, unguided

speculation.

435 U.S. at 490-91.

Even where the attorney has failed to undertake cer-

tain trial tasks, it is difficult to determine whether prejudice

has resulted. For decisions not to offer evidence, or inter-

pose objections, and so forth, may well be legitimate tactical

decisions if made by independent counsel. If made by

counsel with divided loyalties, they are suspect because a

reviewing court cannot reliably determine to what extent

the decisions were based on legitimate tactical considera-

tions and to what extent they were the result of imper-

missible consideration of the best interests of other clients.

Accordingly, this court has held that a state conviction can-

not stand when an examination of the record reveals that

representation by independent counsel ‘‘might have made

a difference in defense strategy.’’ United States ex rel.

Horta v. DeYoung, 523 F.2d 807, 809 (3d Cir. 1975) (per

curiam). This is so even if the defense strategy actually

15B

chosen would not be subject to attack on the ground of in-

effective assistance of counsel had the choice been made

by independent counsel.

Our examination of the record convinces us that there

is in this case at least a possibility of prejudice or conflict

of interest and that independent counsel might well have

chosen a different trial strategy. Therefore, prior decisions

of this court compel reversal.

’ The critical decision counsel made in this case was to

rest at the close of the Commonwealth’s case without pre-

senting petitioner’s testimony or other evidence on his

behalf. Although we have little doubt that this would have

been a legitimate tactical decision if made by independent

counsel,’® in this case it raises a possibility of prejudice o1

conflict of interest. The potential for conflict inherent in

this situation is vividly demonstrated by Peruto’s testimony

at the PCH A hearing on the subject of why no defense had

been presented.

Q. Well, at any rate you had made a decision not

to present any testimony anyway, Ladn’t you?

A. In the Sullivan trial?

Q. The Sullivan case, yes.

A. Yes. I can recall the great discussions that we

had with Sullivan where we were so convinced that—

and we communicated this to Sullivan——

Tse Covrr: When you say great discussion,

you mean lengthy discussion?

Toe Wiryess: Lengthy discussion, yes, sir.

Where we felt that he couldn’t possibly be con-

victed and, therefore, what’s the sense in exposing

the defense because we had two more defendants

to try. .

By [petitioner’s counsel] :

Q. Wait

10. Indeed, the Pennsyivania Supremne Court evenly divided on the issue of

whether the evidence was sufficient to support a conviction. Commonwealth v.

Sullivan, supra, 446 Pa. 419, 286 A.2d 898 (1971).

16B

A. And I’m afraid Sullivan suffered by that fact.

Q. Wait just a minute, sir. You were concerned

with the other two defendants you represented; is that

correct?

A. Yes. Why expose your defense if you’ve got

two more people to come to trial and the Common-

wealth has not presented a case?

Q. So that entered into your consideration as to

whether or not you presented a defense in the Sullivan

case?

A. Sure, it did. When we’re talking about back

and forth. For example, I’ve heard Judge DiBona

testify today, and, yes, we were sort of playing devil’s

advocate. I didn’t want the defense to go on because

I thought we would only be exposing the defendant

witnesses for the other two trials that were coming up.

. . . And as I look back on that, although it was not

my thought that John Sullivan should be short-changed

in any fashion, I’ra afraid that it was my thought that I

was over-solicitous for the other two defendants being

ready to be tried.

He further testified that he opposed calling three witnesses

who had been in the vicinity of Local 107 headquarters at

the time the crime was alleged to have occurred because

‘““T.. . recall that I felt that it might be dangerous because

one of the other two defendants leaving in a hurry might

have been seen by those three witnesses and it might have

damaged that defendant and it might have come out on the

cross-examination of those witnesses in Sullivan’s case.’’

Sullivan’s PCHA hearing testimony confirms Peruto’s

recollection. He testified that at the close of the Common-

wealth’s proofs, he met with both his attorneys and they

discussed whether a defense should be offered and whether

he should testify. The reasons offered to him for not doing

so were that in counsel’s opinion there was not enough evi-

dence to convict him, and there was no reason to risk using

evidence that might harm his co-defendants. Peruto told

17B

him ‘‘there was no sense in putting anything on that may

hurt the other two [defendants] because we’ve got this

case won.’’

Respondents do not argue here, as they did in the

court below, that Peruto’s testimony is unworthy of belief,

perhaps because they rely upon it so heavily in support of

their contention that there was no dual representation.

They do urge us, however, to accept Judge DiBona’s ex-

planation instead. He testified that the final decision not

to present a defense was made jointly by petitioner and

counsel, His decision to advise that course, he testified,

was not in any way based upon a desire to protect his other

clients, but was entirely based upon his professional judg-

ment that the Commonwealth had not proved its case.

Respondents argue that ‘‘(t]he testimony clearly shows

that appellant’s decision that no defense evidence be pre-

sented was based on counsel’s view, with which appellant

concurred, that the Commonwealth had simply not pre-

sented sufficient evidence to obtain a conviction.”’

We believe this analysis is seriously flawed. It is

undisputed that Peruto participated in the decision not to

present a defense. He advised petitioner not to testify

and suggested to co-counsel that witnesses not be called.

No reason or evidence is offered to explain why an attorney

would make the damaging admission of professional im-

propriety we have quoted were it not true. And Sullivan

(albeit not a disinterested witness) corroborates his testi-

mony. We have no basis on which to reject Peruto’s sworn

admission that he injected improper considerations into

the attorney-client relationship.

We believe that Peruto’s testimony illustrates in the

plainest possible terms the potential for conflict of interest.

The evidence in this case was scant. What little there was

was jealously guarded by the opposing attorneys from pre-

mature disclosure. Although counsel owed a duty to peti-

tioner to produce any available evidence which would in

their judgment aid his defense, they also owed a duty to

18B

his co-defendants not to tip their hand to the Common-

wealth. At this trial both parties took maximum advantage

of the element of surprise. There was at least a potential

conflict among the defendants as to which would receive the

benefit of this tactic.

Moreover, by asking us to rule that counsel’s decision

not to present a defense was a legitimate tactical decision,

made in good faith on sound professional judgment by

Judge DiBona, respondents are asking us to decide that

there was in fact no prejudice. This misses the point. The

standard requires us to determine whether there is a pos-

sibility of prejudice or conflict of interest, however remote.

To hold, in the face of this record, that there was not such

& possibility would be to, in effect, overrule a long line of

cases in this circuit and require a showing of actual preju-

dice. This we cannot do.

There is also ether evidence of conflict of interest in

this record. A critical thread in the Commonweaith’s web

of circumstantial evidence was the statement allegedly

made to McGrath by Carchidi: ‘‘Get out of the building

and don’t say nothing.’’ This statement was admitted into

evidence as a declaration by a co-conspirator. It could

only have been rebutted by the testimony of Carchidi. At

the PCHA hearing, Carchidi testified that he had not made

the statement and was available, and willing, to so testify

at Sullivan’s trial, but counsel had told him his testimony

was unnecessary because the evidence was insufficient to

convict. The trial record suggests, however, that the deci-

Sion not to call Carchidi as a witness may have been made

before the close of the Commonwealth’s case. Peruto

argued to the trial judge that the statement was inadmis-

11. Argument over the admissibility of this statement at trial centered on

whether or not it was a co-conspirator declaration. On the first direct appeal,

the Pennsylvania Supreme Court ruled that it was admissible under the spon-

taneous utterance or res gestae exception to the hearsay rule and did not decide

whether it was a declaration by a co-conspirator, 446 Pa. at 439, 286 A.2d at

906. The court abandoned this view on the second direct appeal and ruled

that it was admissible as a co-conspirator declaration and declined to reach

any other grounds. 472 Pa. at 159-60, 371 A.2d at 482-3. This is, Of course,

the final decision of the Pennsylvania courts on this point of state evidence law.

19B

sible because it could only be refuted by Carchidi ‘‘and you

can’t put Carchidi on the record.’’ This suggests to us

that counsel may have decided against using Carchidi as a

witness before they knew whether or not the Common-

wealth’s proofs were sufficient.

Both of petitioner’s attorneys owed a duty to Carchidi

to protect him against possible self-incrimination. They

could not have sought to compel him to testify if it were

against his interest to do so. We think this situation was

much like that presented in Umited States v. Levy, 577 F.2d

200, 211 (3d Cir. 1978), where this court held that the fact

that a criminal defendant had ‘‘waived his right to present

a witness on his behalf on the basis of advice from an at-

torney who owed an obligation to that witness, an obliga-

tion which may well have conflicted with the attorney’s

duty of loyalty to (the defendant]’’ would require a re-

versal of the conviction ‘‘even under a rule requiring a

finding of prejudice.’’ These attorneys owed a duty of

loyalty to Carchidi which may well have conflicted with the

duty they owed petitioner.

Respondents also argue that ultimately it was peti-

tioner himself, and not his attorneys, who decided- not to

take the witness stand and that his decision was based on

personal considerations and not influenced by dual repre-

sentation. Further, they submit, once petitioner had de-

cided not to testify there were no witnesses whose testimony

would have been worthwhile. Any complaint about the

failure to produce defense witnesses is, in their judgment,

illusory. These arguments are also directed to the question

whether there was actual prejudice which, as we have noted,

we may not consider. We think there are other reasons for

rejecting them as well.

As to the first argument, it is not at ail clear on this

record that petitioner did make the ultimate decision not to

testify. His hearing testimony was that:

A. I had nothing to do with the decision. It was

given to me point blank. And Mr. Pernto, after like

20B

I say hours of discussion, Mr. Peruto said something

to the effect of, ‘‘Look, we’re the attorneys. You don’t

know anything about law’’—I’m not quoting him

verbatim, I’m using my own language—and your life

is in my hands and we’re out to protect it, and you’re

not to worry, that you’ll be acquitted and we’re assured

that you'll be acquitted. And I said, ‘‘Look, you got

it, you got the ball, carry it.’’

Even had petitioner himself made the ultimate decision not

to testify, it is plain that his decision was made on the

advice of counsel. For it is undisputed that at least one

of his lawyers strongly urged him not to testify. Following

this advice can hardly be considered an independent de-

cision that bars petitioner from later complaining of the

dual representation that rendered the advice itself suspect.

See United States v. Levy, supra, 577 F.2d at 210-11. In-

deed it is the very fact that petitioner followed the course

suggested by counsel that creates the possibility of preju-

dice.

The contention that there were no witnesses whose

testimony would have been useful requires us to speculate

as to what: witnesses who have never testified, some of

whom are now deceased, would have said and whether inde-

pendent counsel would have used their testimony. This we

cannot do. Indeed, it is the purpose of the Walker-Hart

rule to avoid such speculation. Judge DiBona, in his open-

ing statement to the jury, offered to produce evidence on

petitioner’s behalf. Why counsel chose not to present this

evidence, and whether independent counsel would have

done otherwise, are matters about which we cannot

speculate. It is sufficient that independent counsel might

have acted differently.

V.

We find that there was in this case dual representation

of petitioner Sullivan and his co-defendants. Because we

cannot say on this record that the dual representation

ee ee

.

21B

raised no possibility of prejudice or conflict of interest,

however remote, our prior cases compel reversal. We do

not reach the other grounds asserted.

The order of the district court will be reversed and the

case remanded with a direction that the writ of habeas

corpus should issue discharging the petitioner John Sulli-

van from state custody unless within a reasonable time

fixed by the district court he is afforded a new trial.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circust

(A.O. U. S. Courts, International Printing Co., Phila, Pa.)

1c

APPENDIX C

ORDER AND OPINION OF THE DistRict CourT INCORPORATING IN PART

AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE

| ORDER

DAVIS, S.J,

AND NOW THIS 2np pay oF Fepruary, 1978, AFTER CAREFUL

AND INDEPENDENT CONSIDERATION OF RELATOR’S PETITION FOR A

WRIT OF HABEAS CoRPUS, AND AFTER REVIEW OF THE REPORT AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE, IT 1S ORDERED

THAT:

1, THE REPORT IS APPROVED AND ADOPTED INSOFAR AS

IT IS NOT IN CONFLICT WITH THE ACCOMPANYING OPINION OF THE

Court.

2. THE RECOMMENDATION IS REJECTED,

3. THE PETITION FOR A WRIT OF HABEAS CorPUS Is

DENIED,

4, THERE EXISTS PROBABLE CAUSE FOR APPEAL,

/s/ JoHn Morcan Davis, J,

MEMORANDUM AND ORDER

DAVIS, S.J,

JOHN SULLIVAN, RELATOR IN THIS HABEAS CorPUS ACTION, WAS

CONVICTED BY A JURY IN PHILADELPHIA CouNTY, PENNSYLVANIA, ON

June 19, 1967 oF Two counts oF FIRST DEGREE MURDER FOR THE

KILLINGS OF JOHN GorREY AND RiTa JANDA, WHICH TOOK PLACE ON

2C

June 17, 1966, AFTER EXHAUSTING HIS STATE REMEDIES, HE HAS

COME BEFORE THIS COURT SEEKING HABEAS CORPUS RELIEF, AND

ASSERTING NUMEROUS REASONS THEREFOR,

On NovemBer 3, 1977, Unitep States MAGISTRATE Epwin E,

NAYTHONS FILED A LENGTHY AND COMPREHENSIVE REPORT TO THIS COURT

RECOMMENDING THAT A WRIT OF HABEAS CORPUS BE GRANTED THE

RELATOR, AS A SINGLE ONE OF HIS SEVEN CONTENTIONS APPEARED TO

BE MERITORIOUS. THAT CONTENTION WAS THAT DEFENSE COUNSEL HAD

A CONFLICT OF INTEREST BECAUSE HE ALSO REPRESENTED Two OTHER

PERSONS CHARGED WITH THE SAME CRIME. AS TO RELATOR’S OTHER SIX

ALLEGATIONS OF GROUNDS FOR RELIEF, MAGISTRATE WAYTHONS REPORTED

THAT THEY WERE WITHOUT MERIT, AFTER CAREFUL AND INDEPENDENT

CONSIDERATION OF RELATOR’S PETITION FOR A WRIT OF HABEAS CorPus,

I HAVE CONCLUDED THAT THE MAGISTRATE’S REPORT 1S CORRECT AS TO

THOSE SIX OTHER CONTENTIONS, BUT I MUST DISAGREE WITH THE

RECOMMENDATION THAT THE CONFLICT OF INTEREST CLAIM I§ VALID,

THEREFORE, I AM ADOPTING THE MAGISTRATE’S REPORT, WHICH IS

INCLUDED HEREIN AS AN APPENTIX, INSOFAR AS IT IS NOT IN CONFLICT

WITH THIS OPINION WHICH WILL BE CONCERNED SOLELY WITH THE

QUESTION OF TRIAL COUNSEL'S ALLEGED CONFLICT OF INTEREST,

A BRIEF FACTUAL BACKGROUND CONCERNING THE CIRCUMSTANCES

OF THE ALLEGED CONFLICT MIGHT BE OF VALUE AT THIS TIME, RELATOR

WAS CHARGED WITH THE OFFENSE ALONG WITH TWO OTHER MEN, GREGORY

CARCHIDI AND ANTHONY DIPAsQuaLe. BEFORE TRIAL, ATTORNEYS A.

CHARLES PeRuTO AND G, Frep DiBona WERE APPOINTED TO REPRESENT

3C

THE THREE CO-DEFENDANTS, ACCORDING TO Mr, PERUTO’S TESTIMONY

AT THE Post ConvicTION HEARING Act (PCHA) HEARING, HE AND

Mr. DIBONA GAVE THE THREE DEFENDANTS THE CHOICE AS TO WHICH

ATTORNEY WOULD BE PRIMARILY RESPONSIBLE FOR THE CONDUCT OF

THEIR RESPECTIVE TRIALS, SULLIVAN CHOSE DIBONA BECAUSE OF HIS

AGE AND EXPERIENCE, JHE OTHER TWO BOTH CHOSE PeruTo, (NT.

Apric 25, 1974, 30-109),

MR, SULLIVAN NOW ALLEGES, BASED ON TESTIMONY ELICITED

AT THE PCHA HEARING (SEE, INFRA) THAT MR, PERUTO PLACED THE

INTERESTS OF THE OTHER TWO DEFENDANTS ABOVE THOSE OF RELATOR

IN MAKING THE DECISION NOT TO PRESENT A DEFENSE. DESPITE’

Mr. PERUTO'S TESTIMONY ON THIS ISSUE, THE FACTS AS FOUND IN

THE ENTIRE RECORD OF THIS CASE UNQUESTIONABLY REBUT RELATOR’S

ASSERTION,

As MAGISTRATE NAYTHONS CORRECTLY POINTS OUT IN HIS

EXCELLENT REPORT AT PAGE 39, “A DEFENDANT IS ENTITLED TO THE

UNTRAMMELED AND UNIMPAIRED ASSISTANCE OF COUNSEL FOR HIS

DEFENSE.” Ip, (CITATIONS OMITTED), ALSO, “THE RIGHT TO

COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS

CONTEMPLATES THE SERVICE OF AN ATTORNEY DEVOTED SOLELY TO THE

INTERESTS OF HIS CLIENT,’” AND “THE RIGHT TO COUNSEL ‘REQUIRES

NOTHING LESS THAN THE UNDIVIDED LOYALTY OF COUNSEL IN BEHALF

OF HIS CLIENT.’” Ip, aT 40 (CITATIONS OMITTED).

Now, IN ORDER TO FIND THAT REPRESENTATION, AS ALLEGED

HERE, WAS CONSTITUTIONALLY DEFECTIVE, WE MUST EXAMINE TWO ISSUES:

4C

1, WAS THERE, IN FACT, DUAL REPRESENTATION?

THAT IS, DID THE SAME COUNSEL ACTIVELY REPRESENT TWO INDIVIDUALS

WITH POSSIBLY COMPETING INTERESTS? AND,

2. WAS THERE A SHOWING OF POSSIBLE CONFLICT OF INTEREST OR

PREJUDICE, HOWEVER REMOTE?

ON THESE ISSUES THE PENNSYLVANIA SUPREME COURT HELD AS FOLLOWS:

"THE TESTIMONY ESTABLISHES THAT THERE WAS

NO DUAL REPRESENTATION IN THE TRUE SENSE

OF THE TERM, 1,E., THE SAME COUNSEL ACTIVELY

REPRESENTED CO-DEFENDANTS, Mr, PeRuTo

TESTIFIED THAT IT WAS MR, (Now JuDGE) DrBona

WHO SERVED AS CHIEF COUNSEL FOR APPELLANT

DURING TRIAL AND MADE ALL Dacis10us RELEVANT

TO SULLIVAN S DEFENSE, WHILE HE, Mr, PERUTO,

WAS MERELY ASSISTING, IHESE FUNCTIONS WERE

REVERSED ay THE TRIAL OF THE CO-DEFENDANTS

WHERE R, PERUTO WAS CHIEF COUNSEL ANB UDGE

IBONA THE ASSISTANT. THUS, JUDGE D1Bon

SERVED ONLY A MINOR ROLE IN THE TRIAL OF

THE CO DEFENDANTS WHILE DEVOTING HIS PRIMARY

EFFORTS TO THE SULLIVAN CASE HIS CONCLUSION

IS SUPPROTED BY JUDGE DIBoNA’S STATEMENTS

THAT HIS STEWARDSHIP WAS IN NO WAY AFFECTED

BY HIS CONSIDERATION OF THE CO-DEFENDANT’S

CASES, BUT WAS SOLELY A PRODUCT OF WHAT HE

CONSIDERED TO BE THE BEST COURSE IN HIS

REPRESENTATION OF SULLIVAN, WE THEREFORE

HOLD THAT THERE IS ABSOLUTELY NO EVIDENCE

ST ASST, RE a IRAN

' 4 '

28 U.S.C, §2254(p)(8) PRovIDES THAT IN HABEAS CORPUS PROCEEDINGS

A

FACTUAL DETERMINATIONS MADE BY THE STATE COURT ARE PRESUMED To

BE CORRECT UNLESS THE FEDERAL CouRT “ON CONSIDERATION OF SUCH

PART OF THE RECORD AS A WHOLE CONCLUDES THAT SUCH FACTUAL

DETERMINATION IS NOT FAIRLY SUPPORTED BY THE RECORD.” Ip,

THEREFORE IT IS MY DUTY TO INDEPENDENTLY AMINE THE RECORD,

AND DETERMINE IF IT SUPPORTS THE FACTUAL CONCLUSIONS OF THE

PENNSYLVANIA SUPREME CourT,

5C

& AN EXAMINATION OF THE RECORD OF THE SULLIVAN TRIAL CONFIRMS 6C

THat Jupee DiBOmA was THE PRosay Yaiai, Couns: aeiaenee HIS BEST INTEREST, BUT BY A DESIRE ON THE PART OF COUNSEL NOT TO

NAYTHONS PLACES GREAT EMPHASIS ON THE FACT THAT MR. PeruTo | REVEAL DEFENSE STRATEGY TO BE USED IN THE TRIALS OF THE OTHER

PARTICIPATED FROM TIME TO TIME IN THE CONDUCT OF THE SULLIVAN TWO DEFENDANTS. IN SUPPORT OF THIS ALLEGATION, RELATOR PRESENTS

e TRIAL, PARTICULARLY WHEN THE QUESTION OF SENTENCING WAS AT « he okie lag WAS GIVEN BY MR, PERUTO AT THE

Issue. SEE, MAGISTRATE’S Report pp, 43-44, | DO NOT BELIEVE aot eee EARING:

THESE ISOLATED INCIDENTS WARRANT THE IMPORTANCE ASSIGNED THEM concenne> ll age A Mit

YOU REPRESENTED: IS THAT CORRECT?

BY THE MAGISTRATE. IT IS HARDLY SURPRISING, CONSIDERING

: A. (By Mr, Peruto) Yes, WHY EXPOSE

& MR, PERUTO S REPUTATION AS AN OUTSTANDING TRIAL COUNSEL, THAT & YOUR DEFENSE IF YOU HAVE TWO MORE PEOPLE

TO COME TO TRIAL AND THE COMMONWEALTH

MR, D1 Bona WOULD RELY ON HIM OCCASIONALLY TO EXERCISE HIS HAS NOT PRESENTED A CASE?

VAUNTED POWERS OF PERSUASION. INDEED, ONE MIGHT HAVE EVEN Q, So THAT ENTERED INTO YOUR CONSIDERATION

: AS TO WHETHER OR NOT_YOU PRESENTED A DEFENSE

CONSIDERED Mr, D1BoNA FOOLISH HAD HE NOT MADE USE OF Mr. PeRuTO’s IN THE SULLIVAN CASE?

e TALENTS, AS THEY WERE PRESENT AND AVAILABLE TO HIM AT THE TRIAL, 7 A, Sure 1T pip.” (N.7, PCHA, Aprit 25, 1974 p, 101),

IN ANY EVENT, THE RECORD CONCLUSIVELY ILLUSTRATES THAT IT WAS THIS, HOWEVER, IS THE ONLY TESTIMONY WHICH INDICATES EVEN THE

D1BONA WHO CARRIED THE BURDEN OF TRIAL COUNSEL, WHILE PERUTO

MERELY ACTED AS HIS ASSISTANT. THEREFORE, I ACCEPT THE CON-

POSSIBILITY OF A CONFLICT, AND IS WELL REFUTED BY THE RECORD

WHICH SHOWS THAT IT WAS JUDGE D1BONA WHO WAS CHIEF COUNSEL AND

CLUSION OF FACT OF THE PENNSYLVANIA SUPREME COURT THAT THERE MADE ALL OF THE DECISIONS OF THIS NATURE, AND BY JupGE DiBona’s

WAS NO DUAL REPRESENTATION, OWN TESTIMONY THAT HE WAS NOT INFLUENCED IN ANY WAY BY CONSIDERA-

HAVING FOUND THAT NO DUAL REPRESENTATION EXISTED, IT IS TIONS CONCERNING THE OTHER DEFENDANTS. (N.T. PCHA, Auc. 6, 1974,

UNNECESSARY TO EXAMINE THE QUESTION OF WHETHER ANY CONFLICT OF pp, 79, 83),

‘ INTEREST ACTUALLY EXISTED, SEE, £.G, UNITED STATES EX REL, * THE REASON THAT SULLIVAN DID NOT TESTIFY IS CLEAR FROM THE

SMALL v, RuNDLeE, 442 F,2p 235, 237 (3p. Cir. 1971), However, RECORD-HE DELIBERATELY CHOSE NOT TO TESTIFY BECAUSE HE BELIEVED

] WILL EXAMINE THE ISSUE FOR THE SAKE OF A MORE COMPLETE RECORD. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT HIM, AND BECAUSE HE

RELATOR CONTENDS THAT DEFENSE COUNSELS’ DECISION NOT TO WANTED TO AVOID EMBARRASSMENT TO HIMSELF AND HIS FAMILY WHICH

‘ PERMIT HIM TO TESTIFY IN HIS OWN BEHALF, AND TO PRESENT NO MIGHT HAVE COME FROM REVELATION OF PAST INDISCRETIONS, SULLIVAN

OTHER EVIDENCE, WAS MOTIVATED, NOT BY A CAREFUL ASSESSMENT OF TESTIFIED DURING THE PCHA HEARING THAT HE AT ALL TIMES WANTED TO

7C

TESTIFY AT THE TRIAL, AND PRESENT OTHER EVIDENCE. BuT THIS

CONTENTION IS SIMPLY NOT BORNE OUT BY THE RECORD. ONLY

SULLIVAN'S CO-DEFENDANT CARCHIDI (HARDLY A PILLAR OF CREDIBILITY

UNDER THE CIRCUMSTANCES, ) CONFIRMED SULLIVAN'S CONTENTION,

AND SULLIVAN'S VERSION WAS DIRECTLY CONTRADICTED BY BOTH OF HIS

TRIAL COUNSEL, JUDGE DIBONA TESTIFIED THAT SULLIVAN DID NOT

WISH TO TESTIFY IN HIS OWN BEHALF AND COULD NOT BE PERSUADED TO

DO SO BY COUNSEL, (i.7, PCHA Aprit 24, 1974, 10-11), Mr. Peruto

CONFIRMED JUDGE DIBoNA’S RECOLLECTION THAT IT WAS SULLIVAN’S

DECISION NOT TO TESTIFY. EVEN SULLIVAN HIMSELF TESTIFIED ON

CROSS“EXAMINATION AT THE PCHA HEARING THAT THE REASON HE DID

NOT TESTIFY WAS BECAUSE, “THERE WAS NO EVIDENCE...” (N.7T, PCHA

MARCH 25, 1974, Pp, 215), FURTHERMORE, THERE WAS TESTIMONY

ELICITED FROM SULLIVAN AT THE HEARING THAT EVIDENCE CONCERNING

HIS PERSONAL LIFE WHICH MIGHT HAVE BEEN BROUGHT TO LIGHT HAD HE

TAKEN THE STAND WOULD HAVE CAUSED HIM GREAT EMBARRASSMENT,

(N.T, PCHA March 25, 1974, pp, 212-215). CoNnSEQUENTLY, THE

CONCLUSION IS INESCAPABLE THAT THE DECISION TO KEEP SULLIVAN

OFF OF THE WITNESS STAND WAS MADE BY SULLIVAN HIMSELF, AND HE

CANNOT NOW CLAIM THAT HIS COUNSEL WAS INEFFECTIVE FOR FAILING

TO FORCE HIM TO TESTIFY,

FURTHER, THE RECORD REVEALS THE REASONS JupGE DiBona DID

NOT CALL ANY OTHER DEFENSE WITNESSES, FIRST, HE DID NOT BELIEVE

THAT THE COMMONWEALTH HAD PROVEN ITS CASE, SECOND, NONE OF THE

WITNESSES WHICH RELATOR NOW CONTENDS WOULD HAVE HELPED GAIN HIS

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ACQUITTAL WERE CONSIDERED OF ANY VALUE BY JUDGE D1IBONA FOR

REASONS WHICH ARE WELL DOCUMENTED IN HIS TESTIMONY OF APRIL 24,

1974, AND THIRD, CALLING THESE OTHER WITNESSES WOULD MERELY

HAVE SERVED TO HIGHLIGHT SULLIVAN'S FAILURE TO TESTIFY HIMSELF,

IT 1S OBVIOUS FROM THE RECORD THAT THE DECISION NOT TO PUT ON

ANY DEFENSE WITNESSES WAS A TACTICAL DECISION, MADE WITH THE

BEST INTEREST OF RELATOR IN MIND,

FOR THE ABOVE STATED REASONS, AND FOR THE REASONS WELL

STATED IN THE MAGISTRATE’S REPORT AND RECOMMENDATION, | FIND IT

NECESSARY TO DENY THIS PETITION FOR A WRIT OF HABEAS CorPus,

/s/ JoHN MorcaN Davis, J,

REPORT - RECOMMENDATION

EpwIN E. NAYTHONS t

UNITED STATES MAGISTRATE NovemMBER l, 1977

JOHN SULLIVAN, RELATOR, HAS FILED THIS PETITION FOR A

WRIT OF HABEAS CORPUS FOLLOWING HIS CONVICTION BY A JURY IN

PHILADELPHIA County, PENNSYLVANIA, OF MURDER IN THE FIRST

DEGREE. RELATOR WAS CONVICTED ON JuNE 19, 1967, AND THE

PUNISHMENT WAS FIXED AT TWO CONSECUTIVE LIFE SENTENCES IN THE

DEATHS OF JOHN GOREY AND RITA JANDA WHICH TOOK PLACE ON June 17,

1966, FOLLOWING DENIAL OF MOTIONS FOR A NEW TRIAL AND IN ARREST

: V. Senge Pate Court OF Common

sions iit, Lou oa ee ee

NOVEMBER

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OF JUDGMENT, JUDGMENT OF SENTENCE WAS IMPOSED AS THE JURY DIRECTED,

AN APPEAL WAS TAKEN TO THE SUPREME COURT OF PENNSYLVANIA WHERE THE

JUDGMENT OF SENTENCE WAS AFFIRMED BY AN EVENLY DIVIDED COURT.

COMMONWEALTH V. SubLivAn, 446 Pa, 419 (1971),

RELATOR WAS REPRESENTED AT TRIAL BY THE HONORABLE G, FRED

DiBona AND A, CHARLES Peruto, Esquire. On Octoper 30, 1973,

RELATOR FILED A PETITION UNDER THE PENNSYLVANIA PosT-ConviCTION

HEARING Act, 19 P,S, $1180-1 ET SEQ. AND AN AMENDED PETITION

WAS FILED ON FEBRUARY 27, 1974, ALLEGING

(1) INEFFECTIVE ASSISTANCE OF COUNSEL;

(2) DENIAL. OF RIGHT TO APPEAL;

(3) THAT THE TRIAL COURT ERRED IN INSTRUCTING THE

JURY;

(4) INDICTMENTS WERE BASED ON PERJURED TESTIMONY;

(5) IMPROPER INTRODUCTION OF A STATEMENT OF AN ALLEGED

CO-CONSPIRATOR;

(6) THE CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE;

(7) AN INCULPATORY STATEMENT WAS ILLEGALLY INTRODUCED;

(8) ADMISSION OF PREJUDICIAL TESTIMONY REGARDING

RELATOR’S REQUEST FOR AN ATTORNEY;

(9) THE IMPROPER DISPLAY OF INFLAMMATORY PICTURES;

(10) THE YUDGE’S RECEIPT OF SECRET EVIDENCE FROM THE

District ATTORNEY,

LOC

AFTER A LENGTHY HEARING BEFORE THE HONORABLE ETHAN ALLEN

Doty on NovemBer 6, 1974, THE CouRT GRANTED RELATOR LEAVE TO

FILE AN APPEAL NUNC PRO IUNC TO THE PENNSYLVANIA SuPREME CouRT

AND TO FILE BRIEFS AND PRESENT ORAL ARGUMENT; THE PETITION FOR

RELIEF UNDER THE PosT-ConVICTION HEARING ACT WAS OTHERWISE

DENIED, THE RELATOR AND THE COMMONWEALTH APPEALED FROM THIS

ORDER,

RELATOR APPEALED TO THE SUPREME CouRT OF PENNSYLVANIA

ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL, THE

COMMONWEALTH ALSO APPEALED FROM THE ORDER GRANTING LEAVE TO

FILE A SECOND APPEAL, THE SUPREME COURT HELD THAT THE EVIDENCE

WAS SUFFICIENT TO SUSTAIN THE PosT-CoNnvICTION HEARING CourT’s

FINDING THAT COUNSEL’S FAILURE TO FILE AN ADEQUATE BRIEF AND TO

ARGUE THE APPEAL ORALLY DEPRIVED RELATOR OF EFFECTIVE ASSISTANCE

OF APPELLATE COUNSEL IN HIS INITIAL APPEAL, AND THUS LEAVE TO FILE

A SECOND APPEAL WAS APPROPRIATELY GRANTED, FURTHER, THE COURT

FOUND THAT THE EVIDENCE WAS SUFFICIENT TO SUSTAIN RELATOR’S

CONVICTION AND THAT THE TRIAL COURT DID NOT ERR IN ADMITTING

INTO EVIDENCE COLOR SLIDES DEPICTING THE BODIES OF THE DECEASED,

THE COURT ALSO HELD THAT SULLIVAN WAS EFFECTIVELY REPRESENTED BY

COUNSEL AT TRIAL AND THAT JUDGE DOTY PROPERLY DISMISSED RELATOR’S

OTHER CLAIMS, SULLIVAN V. COMMONWEALTH, 371 A.2p 468 (Pa, 1977),

IN THE PRESENT PETITION FOR FEDERAL HABEAS CORPUS RELIEF

RELATOR ALLEGES THE FOLLOWING GROUNDS:

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(1) THE ADMISSION INTO EVIDENCE OF COLOR SLIDES WAS

A DENIAL OF DUE PROCESS;

(2) THAT THE FACTUAL DATA UNDERLYING RELATOR’ S

CONVICTION WAS SO TOTALLY VOID OF EVIDENTIARY SUPPORT AS TO

VIOLATE DUE PROCESS;

(3) DEFENSE COUNSEL HAD A CONFLICT OF INTEREST BECAUSE

HE ALSO REPRESENTED TWO OTHER PERSONS CHARGED WITH THE SAME

CRIME;

(4) COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO

CERTAIN TESTIMONY;

(5) COUNSEL WAS INEFFECTIVE IN FAILING TO RESERVE

OBJECTIONS TO THE OFFERING OF A SECRET MEMORANDUM TO THE TRIAL

JUDGE;

(A) THE TRIAL JUDGE ERRED IN INSTRUCTING THE JURY ON

DEGREE OF GUILT, AMOUNTING TO A DENIAL OF DUE PROCESS;

(7) THE FAILURE OF THE PROSECUTION TO DISCLOSE

CERTAIN EVIDENCE DENIED HIM DUE PROCESS OF LAW,

THE EVIDENCE UPON THE CONVICTION

WAS BAS

THE CONVICTION AROSE FROM THE EVENTS OF THE EVENING OF

June 17, 1966, aT WHICH TIME JOHN GOREY A UNION OFFICIAL OF

TEAMSTER’S Union Locat 107, AND HIS GIRLFRIEND, RITA JANDA, WERE

THE VICTIMS OF AN ASSASSINATION“TYPE HOMICIDE CARRIED OUT IN

GoREY’S OFFICE ON THE SECOND FLOOR OF THE LOCAL’S UNION HALL

AND OFFICE BUILDING IN PHILADELPHIA, PENNSYLVANIA,

12¢

WE ADOPT THE SuPREME CouRT OF PENNSYLVANIA’S STATEMENT OF

THE FACTS AS AN ACCURATE AND ADEQUATE SUMMARY AS FOLLOWS:

"TWO FIREARMS WERE USED IN KILLING EACH OF THE VICTIMS,

AND SHOTS FROM BOTH WEAPONS WERE FOUND IN EACH OF THE BODIES,

THE WEAPONS WERE NEVER FOUND, NO FELONY OTHER THAN THE HOMICIDES

WERE INVOLVED, AND THERE WERE NO WITNESSES TO THE KILLING, SO

THAT THE COMMONWEALTH’S CASE WAS BASICALLY PRESENTED AND

PREDICATED UPON CIRCUMSTANTIAL EVIDENCE,

",, ALL OF THE CIRCUMSTANCES CONSIDERED BY THE JURY AND

DESCRIBED BY THE WITNESSES COVERED A SHORT PERIOD, ROUGHLY

BETWEEN 5:55 P.M, AND 7:13 P.M., ON THE EVENING OF THE KILLING,

THE DEFENDANT OFFERED NO EVIDENCE, SO THAT THE TESTIMONY PRESENTED

BY THE COMMONWEALTH WAS SUBMITTED TO THE JURY WITHOUT CONTRADICTION,

"THE COMMONWEALTH’S PRINCIPAL WITNESS, FRANCIS McGRATH, A

MEMBER OF THE LOCAL, HAD BEEN EMPLOYED BY THE UNION AS JANITOR

IN THE BUILDING INVOLVED AT THE TIME OF THE HOMICIDES, AND HAD

HELD OFFICIAL POSITIONS IN THE UNION IN THE PAST, MCGRATH

TESTIFIED THAT HE ARRIVED ON THE PREMISES AT ABOUT 5:55 P,M,,

AT WHICH TIME THE BUILDING’S PARKING LOT WAS VACANT EXCEPT FOR

TWO AUTOMOBILES; THE DEFENDANT'S AND THAT OF ANOTHER MEMBER OF

THE UNION, GREGORY CARCHIDI, WHO WAS ALSO EMPLOYED BY THE LOCAL

AS A JANITOR, THE DEFENDANT, SULLIVAN, AN OFFICIAL OF LocaL 107,

WAS THEN SITTING AT A DESK BESIDE A WINDOW IN THE SECOND STORY

ee Was AcaUI TIED QF THE CHARGE OF MURDER_AND CONSPIRACY BY

AgeeRY on JANUARY 26, 1968, AS WAS ANTHONY Dr PASQUALE ON Marcu 14,

13¢

OFFICE OF ANOTHER UNION OFFICIAL. FROM THE WINDOW SULLIVAN HAD

& VIEW OF THE PARKING LOT, AND HIS POSITION AT THE WINDOW WAS

MAINTAINED WHILE MCGRATH ENTERED THE BUILDING, WENT UP TO THAT

OFFICE ON THE SECOND FLOOR AND BEGAN HIS JANITORIAL WORK THERE,

THE SWITCHBOARD FOR THE TELEPHONE LINES HAD BEEN ARRANGED FOR

THE NIGHT SO THAT THE LINE LISTED AND USED FOR INCOMING CALLS

HAVING TO DO WITH REGULAR UNION BUSINESS WAS PLUGGED IN TO RING

THE EXTENSION TELEPHONE IN THE ROOM WHERE SULLIVAN WAS SITTING,

ANOTHER LINE WITH A DIFFERENT CALL NUMBER HAD BEEN SET UP BY THE

SWITCHBOARD OPERATOR TO RING IN GOREY’S ROOM, BY PREARRANGEMENT

WITH GOREY’S KNOWLEDGE, SO THAT JOSEPH VERNICK, WHO WISHED TO

SPEAK WITH GOREY, COULD REACH HIM BY CALLING THAT NUMBER AFTER

7 P.M. THAT EVENING. As MCGRATH STARTED HIS CLEANING WORK,

SULLIVAN ASKED HIM WHY HE WAS CLEANING THE BUILDING ON THIS

NIGHT, WHICH WAS A FRIDAY, AND SUGGESTED THAT HE WAIT UNTIL

SUNDAY NIGHT TO DO THE CLEANING, POINTING OUT THAT A UNION

MEETING WAS SCHEDULED FOR SUNDAY DURING THE DAYTIME, SO THAT

THE PLACE WOULD REQUIRE CLEANING AFTER THAT MEETING, THE

VICTIMS, GOREY AND JANDA, ARRIVED BETWEEN 6:10 anv 6:15 P.M,

AND WENT TO GOREY’S OFFICE ON THE SECOND FLOOR, THE WITNESS

CONTAINUED (SIC) EMPTYING TRASH BASKETS AND WORKING HIS WAY FROM

ONE ROOM TO THE NEXT AROUND THE SECOND STORY, GOING FROM THE

OFFICE IN WHICH SULLIVAN WAS SITTING TO THE CONFERENCE ROOM

WHICH WAS NEXT, BUT FOR AN AREAWAY, TO THE OFFICE IN WHICH THE

VICTIMS THEN WERE,

14¢

“WHILE MCGRATH WAS IN THE CONFERENCE ROOM THE FOLLOWING

THINGS HAPPENED: JOHN GOREY CAME IN AND HAD A CONVERSATION

(WHICH IS NOT RELEVANT), AND LEFT, ‘IN A MATTER OF SECONDS,

A HALF A MINUTE’ AFTER GOREY LEFT THE CONFERENCE ROOM, SULLIVAN

ENTERED AND SAID AGAIN, ‘WHY DON’T YOU LET IT GO UNTIL AFTER

THE MEETING’, SPEAKING OF THE CLEANING WORK THAT MCGRATH WAS

DOING, THERE FOLLOWED A CONVERSATION WITH SULLIVAN ABOUT

SOMETHING THAT JOHN GOREY HAD SAID, DURING WHICH CARCHIDI CAME

INTO THE CONFERENCE ROOM AT A TIME ESTIMATED TO BE A MATTER OF

A MINUTE OR TWO AFTER SULLIVAN HAD MADE HIS ENTRANCE,

“UPON CARCHIDI’S ENTRANCE NO GREETINGS WERE EXCHANGED

BETWEEN HIM AND SULLIVAN, IN FACT, NEITHER OF THEM MADE ANY

COMMENT TO THE OTHER. INSTEAD, CARCHIDI SPOKE DIRECTLY TO

MCGRATH, STATING IN SULLIVAN'S PRESENCE JUST ABOUT WHAT

SULLIVAN HAD JUST SAID: ‘,,,LEAVE THE CLEANING GO UNTIL

SUNDAY AFTER THE MEETING.’ SULLIVAN THEN LEFT THE CONFERENCE

ROOM, McGRATH TESTIFIED THAT SULLIVAN’S DEPARTURE WAS ‘FROM

THREE TO FIVE MINUTES, APPROXIMATELY’, AFTER GOREY HAD LEFT;

THAT HE THEN CONTINUED HIS CLEANING, AND THAT CARCHIDI

‘REMINDED ME AGAIN TO LET THE CLEANING GO UNTIL AFTER SUNDAY. ‘

IT WAS AT THIS POINT THAT MCGRATH HEARD ‘WHAT | BELIEVED TO

BE FIRECRACKERS... |] HEARD A LOT OF NOISE, LOUD REPORTS, WHICH

] THOUGHT WERE FIRECRACKERS...JUST LIKE I saID, YouR HONOR, IT

WAS A BUNCH OF NOISES SIMULTANEOUSLY. DON’T KNOW HOW TO SAY

THE WORD, BUT IF YOU LIGHT A WHOLE PACK OF FIRECRACKERS AND

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THROW THEM ON THE FLOOR AND THEY WOULD GO OFF ONE RIGHT AFTER

ANOTHER.’ IN THIS CHARGED ATMOSPHERE MCGRATH TURNED TO

CARCHIDI WHO WAS SEATED IN THE CHAIR BEHIND HIM AND EXCLAIMED,

‘WHAT WAS THAT?’ WHEREUPON CARCHICI (SIC) STATED, ‘GET OUT

OF THE BUILDING AND DON’T SAY NOTHING’. MCGRATH GOT OUT OF

THE BUILDING AND NOTICED THAT THE CARS THAT HAD BEEN ON THE

PARKING LOT PREVIOUSLY, GoREY’S, SULLIVAN'S AND CARCHIDI’S,

WERE STILL THERE, BUT AT THIS TIME THERE WAS ANOTHER CAR ALSO

ON THE LOT, MCGRATH FIXED THE TIME OF HIS DEPARTURE AS BETWEEN

7:05 and 7:15 P.M. HE TESTIFIED THAT, BECAUSE OF HIS HASTY

DEPARTURE, DOORS TO THE ROOMS ON THE SECOND FLOOR WHERE HE

HAD BEEN WORKING HAD BEEN LEFT OPEN AND THE LIGHTS WERE LEFT

ON WHEN HE LEFT THE BUILDING. HE RETURNED 15 To 20 miNuTES

LATER AND OBSERVCD THAT THE AUTOMOBILES OF SULLIVAN AND CARCHIDI,

AND THE THIRD CAR, HAD VACATED THE PARKING LOT, LEAVING ONLY THE

AUTOMOBILE OF JOHN GOREY; IN ADDITION, ALL OF THE DOORS INSIDE

THE BUILDING HAD BEEN CLOSED, AND ALL OF THE LIGHTS HAD BEEN

TURNED OFF, THE DOOR TO THE CONFERENCE ROOM WHICH HAD BEEN LEFT

OPEN WAS NOW CLOSED AND LOCKED,

"OTHER WITNESSES GAVE TESTIMONY WHICH SERVED TO ADD

IMPORTANT THREADS AND DETAILS IN THE FABRIC OF CIRCUMSTANTIAL

EVIDENCE. FOR EXAMPLE, WHEN IRENE GLENN TELEPHONED, DIALING

IN ON THE PRINCIPAL TELEPHONE LINE OF THE UNION (WHICH LINE,

AS PREVIOUSLY NOTED HAD BEEN SET UP TO RING AT THE DESK WHERE

SULLIVAN WAS THEN SITTING), THE CALL WAS ANSWERED BY ONE WHO

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STATED THAT HE WAS GOREY. HER RECOLLECTION WAS THAT THIS

RECIPIENT OF HER CALL GAVE HIS NAME AS ‘BILL’ GOREY; AND,

WHILE SHE WAS NOT SURE WHICH FIRST NAME HE GAVE, SHE WAS QUITE

POSITIVE THAT THE LAST NAME GIVEN WAS ‘GorEY’,. IT WAS UNCONTESTED

THAT SULLIVAN HAD WRITTEN HER NAME AND TELEPHONE NUMBER ON A

CERTAIN YELLOW SHEET OF PAPER WHICH WAS FOUND IN THE WASTE BASKET

IN THAT OFFICE, COUPLED WITH THIS WAS THE FACT THAT HER CALL

wAS AT 6:15 P.M,, UYUST SHORTLY AFTER THE VICTIMS HAD ARRIVED,

"JOSEPH VERNICK, TRYING TO REACH GOREY, MADE HIS CALL TO

THE NUMBER WHICH WAS GIVEN TO HIM BY THE UNION’S TELEPHONE

SWITCHBOARD OPERATOR, ESTHER SNYDER. SHE TESTIFIED THAT SHE

HAD PLUGGED THIS LINE INTO GOREY’S OFFICE WITH HIS KNOWLEDGE,

S@ THAT, PRESUMABLY, HE WAS EXPECTING THE CALL WHICH REMAINED

UNANSWERED THAT EVENING, APPARENTLY AFTER HIS AND RITA JANDA’S

DEATHS, VERNICK RANG THROUGH ON THIS LINE TO GOREY’S TELEPHONE

SEVERAL TIMES, RECEIVING NO ANSWER, OVER A PERIOD FROM 7:15 To

8:15 P.M.”

I.

THE SUFFICIENCY OF THE EVIDENCE

RELATOR URGES THAT THE EVIDENCE SET FORTH ABOVE WAS

INSUFFICIENT TO SUSTAIN A VERDICT OF FIRST DEGREE MURDER. IN

THIS CASE, THE COMMONWEALTH RELIED TOTALLY ON CIRCUMSTANTIAL

EVIDENCE. OF COURSE, CIRCUMSTANTIAL EVIDENCE IN ITSELF MAY

BE SUFFICIENT TO ESTABLISH BOTH THE COMMISSION OF A CRIME AND

THE ACCUSED’S PARTICIPATION IF THE INFERENCES ARISING FROM THE

17C

EVIDENCE ESTABLISH THESE FACTS BEYOND A REASONABLE DOUBT,

COMMONWEALTH V. Cox, 460 Pa. 566, 333 A.2p 917 (1975);

COMMONWEALTH V. Auston, 461 Pa, 664, 337 A.2p 597 (1975),

MOREOVER, IT IS NOT NECESSARY THAT EACH PIECE OF EVIDENCE BE

LINKED TO THE DEFENDANT BEYOND A REASONABLE DOUBT, IT IS ONLY

NECESSARY THAT EACH PIECE OF EVIDENCE INCLUDE THE DEFENDANT

IN A GROUP WHO COULD BE LINKED WHILE EXCLUDING OTHERS, AND

THAT THE COMBINATION OF EVIDENCE LINKED THE DEFENDANT TO THE

CRIME BEYOND A REASONABLE DOUBT (EMPHASIS SUPPLIED), COMMONWEALTH

v. PETRISKO, 442 Pa, 575, 580, 275 A.2p 46, 49 (1971). SEE aLso

COMMONWEALTH V. LINSLEY, 465 Pa, 329, 350 A.2p 791 (1976), As

STATED, THE FACTS AND CIRCUMSTANCES NEED NOT BE ABSOLUTELY

INCOMPATABLE (SIC) WITH DEFENDANT'S INNOCENCE, BUT THE QUESTION

OF ANY DOUBT IS FOR THE JURY UNLESS THE FVIDENCE “BE SO WEAK AND

INCONCLUSIVE THAT AS A MATTER OF LAW NO PROBABILITY OF FACT CAN

BE DRAWN FROM THE COMBINED CIRCUMSTANCES.” COMMONWEALTH V.

Liponati, 346 Pa, 504, 508, 31 A.2p 95, 97 (1943), See aLso

COMMONWEALTH V. RoGozinskl, 387 Pa, 399, 402, 128 A.2p 28, 30

(1956), MY REVIEW OF THE STATE COURT'S FINDINGS DEALING WITH

THIS PART OF THE CASE INDICATES THAT AN ANALYSIS OF THE FACTS

SUPPORTS THE JURY'S FINDINGS, SULLIVAN HAD REMAINED AT THE

WINDOW LOOKING OUT ONTO THE PARKING LOT FOR MORE THAN TWENTY

(20) MINUTES AFTER MCGRATH'S ARRIVAL, INDICATING THAT HE WAS

AWAITING THE ARRIVAL OF A PARTICULAR INDIVIDUAL. SULLIVAN DID

18¢

NOT LEAVE THAT OBSERVATION POINT UNTIL HE HAD SEEN THE VICTIMS

ARRIVE, STRONGLY SUGGESTING THAT IT WAS IN FACT GOREY AND

JANDA WHOSE ARRIVAL HE WAS AWAITING, THE EVIDENCE FURTHER

JUSTIFIES AN INFERENCE THAT SULLIVAN ATTEMPTED TO CONCEAL HIS

IDENTITY AND PRESENCE BY ANSWERING THE TELEPHONE AS “GOREY”,

MOREOVER, HE ATTEMPTED TO PERSUADE MCGRATH TO LEAVE THE PREMISES

BY REPEATEDLY SUGGESTING THAT THE CLEANING BE LEFT UNTIL SUNDAY,

SUCH CONDUCT IS HIGHLY CONSISTENT WITH AN ATTEMPT TO AVOID THE

POSSIBILITY OF ANY WITNESSES TO THE ANTICIPATED EVENT,

THIS CONCLUSION I$ BUTTRESSED BY THE ACTIONS OF CARCHIDI,

A CO-DEFENDANT, WHO ENTERED THE CONFERENCE ROOM AND WITHOUT

ENGAGING IN DISCUSSION WITH RELATOR, ALSO INSTRUCTED McGRATH

TO DEFER HIS DUTIES UNTIL SUNDAY. ALMOST IMMEDIATELY THEREAFTER,

RELATOR EXITED THE CONFERENCE ROOM THROUGH THE SAME DOORWAY

WHICH GOREY HAD PREVIOUSLY DEPARTED, AND WAS (SIC) LED TOWARDS

GOREY’S OFFICE, THE SCENE OF THE MURDERS, MOMENTARILY, THE SHOTS

WERE HEARD AND CARCHIDI TOLD MCGRATH TO ”,,,GET OUT OF THE

BUILDING AND DON’T SAY NOTHING” (SIC), A REASONABLE INFERENCE

WAS PROPERLY DRAWN BY THE JURY THAT THE REPETITION AND SIMILARITY

OF THESE STATEMENTS TO MCGRATH BY RELATOR AND CARCHIDI JUST

PRIOR TO THE SHOOTINGS WAS INDICATIVE OF THEIR KNOWLEDGE OF

THE IMPENDING INCIDENT AND FURTHER EVIDENCED THEIR ATTEMPTS TO

REMOVE ANY POTENTIAL WITNESSES TO THE CRIME,

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ADDITIONAL EVIDENCE OF GUILT WAS ALSO PROPERLY INFERRED

FROM RELATOR’S STATEMENT TO POLICE. DURING QUESTIONING

SEVERAL DAYS AFTER THE MURDERS, SULLIVAN DENIED BEING PRESENT

AT THE BUILDING DURING THE TIME OF THE SHOOTINGS. THIS

CONTRADICTED MCGRATH’S STATEMENT WHICH PLACED SULLIVAN IN

DIRECT PROXIMITY TO THE CRIME ONLY MOMENTS BEFORE ITS

OCCURRENCE. MOREOVER, MCGRATH STATED THAT WHEN HE LEFT THE

BUILDING SULLIVAN’S CAR WAS STILL PARKED IN THE LOT,

DISCUSS ION

IT IS CLEAR THAT WE CANNOT REVIEW THE SUFFICIENCY OF THE

EVIDENCE IN SUPPORT OF RELATOR’S CONVICTION AT A FEDERAL HABEAS

CORPUS PROCEEDING. THE QUESTION PRESENTED TO A FEDERAL COURT

BY SUCH A CLAIM, IN THE WORDS OF JHOMPSON V. CITY OF LOUISVILLE,

362 U.S. 199 (1969) 1S WHETHER:

" .,THE CHARGES...WERE SO TOTALLY DEVOID

EVIDENTIARY SUPPORT AS TO RENDER (THE

comviers N UNCONSTITUTIONAL UNDER THE Due

ROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,

DECISION ON THIS QUESTION TURNS NOT ON THE

Vv

wae Es AB oe acs aFéD

: D 487 it Oeste Te

CLEARLY IN THE INSTANT CASE, THERE IS NO SUCH LACK OF

EVIDENCE AS TO CAST ANY DOUBT ON THE STATEMENT OF THE SUPREME

CourT OF PENNSYLVANIA THAT “THESE FACTS....TAKEN IN CONSORT WITH

20C

ALL REASONABLE INFERENCES, THEY CLEARLY JUSTIFY THE CONCLUSION

THAT APPELLANT WAS LINKED TO THE CRIME BEYOND A REASONABLE

DOUBT....°

——

a

aie ADMISS F C0

LAr. “

RELATOR NEXT ALLEGES ERROR BY THE TRIAL COURT FOR ADMITTING

INTO EVIDENCE COLOR SLIDES DEPICTING THE BODIES OF THE VICTIMS,

w=

R_ SLIDES

JES

LAW ON THIS SUBJECT IS WELL SETTLED THAT THE ADMISSION OF THIS

TYPE OF EVIDENCE IS WITHIN THE DISCRETION OF THE TRIAL COURT AND

ABSENT AN ABUSE OF THAT DISCRETION, THERE 1S NO REVERSIBLE ERROR,

COMMONWEALTH V. Woops, 454 Pa, 250, 252, 311 A.2p 582, 583 (1973);

CoMMONWEALTH V. Dickerson, 406 Pa. 102, 176 A.2p 421 (1962).

MOREOVER, THE PROPER TEST TO BE APPLIED BY A TRIAL COURT IN

DETERMINING THE ADMISSIBILITY OF PHOTOGRAPHS IN HOMICIDE CASES

1S WHETHER OR NOT THE PHOTOGRAPHS ARE OF SUCH EVIDENTIARY VALUE

THAT THEIR NEED CLEARLY OUTWEIGHS THEIR LIKELIHOOD OF INFLAMING

THE MINDS AND PASSIONS OF THE JURORS. COMMONWEALTH V. POWELL,

428 Pa, 275, 278 (1968), HOWEVER, SUCH PHOTOGRAPHS WILL NOT BE

EXCLUDED MERELY BECAUSE THEY ARE UNPLEASANT OR GRUESOME,

COMMONWEALTH V. SCARAMUZZINO, 455 Pa, 378, 381 (1974). IN THE

INSTANT CASE, THE COMMONWEALTH THEORY SUBSTANTIATED BY BALLISTIC

EVIDENCE WAS THAT THE VICTIMS WERE KILLED BY SHOTS FROM TWO

DIFFERENT WEAPONS AND THAT EACH PERSON WAS HIT BY SHOTS FROM

BOTH GUNS, RECONSTRUCTING THE SHOOTINGS THROUGH THESE SLIDES

THE PROSECUTION SOUGHT TO PROVE THAT NEITHER VICTIM COULD HAVE

21¢

SHOT THE OTHER, THAT GOREY WAS THE PRINCIPAL TARGET AND JANDA

WAS SHOT WHILE SHE WAS ATTEMPTING TO HIDE BENEATH HER DESK TO

AVOID THE EXISTENCE OF A WITNESS TO THE KILLING OF GOREY,

THUS THE EVIDENCE WAS OFFERED TO AID THE JURY IN UNDERSTANDING

THE PHYSICAL SCENE OF THE CRIME, THE NATURE AND EXTENT OF THE

WOUNDS INFLICTED AND THE BRUTALITY OF THE MURDER TO GRAPHICALLY

DEMONSTRATE THE EXISTENCE OF AN ATTEMPT TO TAKE LIFE,

MOREOVER, AS A GENERAL RULE, QUESTIONS INVOLVING THE AD-

MISSION OF EVIDENCE ARE NOT SUBJECT TO REVIEW BY A FEDERAL COURT

IN A HABEAS CORPUS PROCEEDING INITIATED BY A STATE PRISONER UNLESS

THERE IS AN ERROR OF SUCH MAGNITUDE AS TO DENY FUNDAMENTAL

FAIRNESS TO THE CRIMINAL TRIAL. BuRGETT v. Lexas, 389 U.S, 109,

113-114 (1967); Unitep STATES £x REL, HaRRis Vv. Iupinois, 457

F,2p 191, 198 (7TH Cir. 1972); WitttAms v. WAINWRIGHT, 427 F,2p

921 (StH Cir. 1970), WitHoUT INTENDING TO ENNUNCIATE (SIC) AN ALL

INCLUSIVE RULE, | RECOMMEND THAT THE EVIDENCE OF THE COLOR SLIDES

ADMITTED HERE DID NOT INFRINGE UPON THE FAIRNESS OF SULLIVAN'S

TRIAL. SPENCER V. TEXAS, SUPRA, FURTHERMORE, IT 1S WELL

SETTLED THAT ERRORS COMMITTED DURING THE TRIAL OF A CRIMINAL

CASE IN A STATE COURT ARE NOT SUBJECT TO REVIEW IN A HABEAS

CORPUS PROCEEDING IN A FEDERAL COURT UNLESS “IT IS SHOWN THAT

THE ERRORS WERE SO CONSPICUOUSLY PREJUDICIAL AS TO DEPRIVE THE

DEFENDANT OF A FAIR TRIAL.” UNITED STATES EX REL, CANNON V,

Maroney, 373 F,2p 908, 910 (3rd Cir. 1967),

lll.

THE CALIBER OF LEGAL REPRESENTATION

YK > 2b

IN A CRIMINAL TRIAL THE ACCUSED IS ENTITLED TO THE

ASSISTANCE OF COUNSEL IN HIS DEFENSE, UNITED STATES CONSTITUTION

AMENDMENT VI, THIS PRINCIPLE IS APPLICABLE IN STATE, AS WELL AS

FEDERAL PROCEEDINGS. GIDEON V. WAINWRIGHT, 372 U.S, 335 (1963).

MOREOVER, THE QUALITY OF REPRESENTATION, WHICH IS REQUIRED IN

ORDER TO MEET THE CONSTITUTIONAL STANDARDS MANDATED, MUST BE

EFFECTIVE AND COMPETENT, AND NOT MERELY PREFUNCTORY OR CHARADE-

LIKE IN CHARACTER. POWELL V. ALABAMA, 287 U.S. 485, 68, 71 (1932),

WHILE THE SUPREME COURT HAS NOT ARTICULATED MORE PRECISE GUIDE-

LINES WITH RESPECT TO THE QUALITY OF REPRESENTATION WHICH IS

REQUIRED IN ORDER TO MEET DUE PROCESS AND FOURTEENTH AMENDMENT

STANDARDS, VARIOUS COURTS OF APPEAL HAVE DONE SO. THE THIRD

CIRCUIT, ALONG WITH THE FOURTH, FIFTH AND DISTRICT OF COLUMBIA

CIRCUITS HAS TAKEN A STRICT VIEW OF THE MINIMAL STANDARD OF THE

QUALITY OF REPRESENTATION WHICH MUST BE PROVIDED. THE REQUIREMENT

IN THE THIRD CIRCUIT IS REASONABLE COMPETENCY. THIS PRECEPT WAS

FIRST ENNUNCIATED (sic) IN Moore v. Unitep States, 432 F.2p 730,

737 (3rd Cir, 1970), ovERRULING UNITED STATES Ex REL, CAREY Vv.

Runpte, 499 F.2p 1219 (3rp Cir. 1969), cert penrep 397 U.S, 496

(1970), anp UNITED STATES Ex REL, Darcy v. Hanpy. 203 F.2p 407

(3rp Cir, 1953) “Farce or Mockery oF Justice”, See UNITED STATES

EX REL, GREEN v. RunpLe, 434 F,2p 1112 (3rp Cir. 1970). See aALso

UniTED STATES Ex REL, NAVARRO Vv. JOHNSTON, 365 F, Supp. 676 (E.D,

Pa, 1973). THE INQUIRY DOES NOT GO SIMPLY TO THE LEVEL OF

230

COMPETENCY, SINCE EVEN WHEN THERE IS NORMALLY COMPETENT REPRESEN-

TATION THERE MAY BE ERRORS ON THE PART OF COUNSEL, RATHER, THE

INQUIRY IS WHETHER THE ERRORS, IF ANY, WERE IN FACT, EGREGIOUS

AND PREJYDICIAL. UNITED STATES EX REL, GREEN v, RUNDLE, suPRA,

AT 1113, RELATOR HAS RAISED A NUMBER OF GROUNDS IN WHICH HE

ALLEGES THAT HIS TRIAL COUNSEL WAS INEFFECTIVE AND INCOMPETENT,

A SERIATIM REVIEW OF THE POINTS RAISED BY RELATOR FOLLOWS:

A, RELATOR CONTENDS INITIALLY THAT IT WAS ERROR FOR THE

COURT TO EXPRESS ITS OPINION AS TO THE DEGREE OF GUILT INVOLVED

IN THE CRIME, AS PREVIOUSLY NOTED, THE TEST FOR DETERMINING THE

EFFECTIVENESS OF COUNSEL IS BASED UPON REASONABLE COMPETENCY,

Tue MOORE STANDARD IS COMPREHENSIVELY SET FORTH IN THE FOLLOWING

PASSAGE FROM THE OPINION:

A RETROSPECTIVE EXAMINATION OF A LAWYER'S REPRESENTATION TO

DETERMINE WHETHER IT WAS FREE FROM ANY ERROR WOULD EXACT A HIGHER

MEASURE OF COMPETENCY THAN THE PREVAILING STANDARD. ERFECTION

1S HARDLY ATTAINABLE AND CERTAINLY IS NOT THE. GENERAL RULE,

ESPECIALLY IN PROFESSIONAL WORK WHERE INTUITIVE JUDGMENTS AND

SPONTANEOUS DECISIONS ARE OFTEN REQUIRED IN VARYING CIRCUMSTANCES,

HE ARTISTRY OF THE ADVOCATE IS DIFFICULT TO JUDGE RETROSPECTIVELY

BECAUSE THE ELEMENTS INFLUENCING JUDGMENT USUALLY CANNOT BE CAPTURED

ON THE RECORD. IHE KALEIDOSCOPIC RANGE OF POSSIBILITIES OFTEN SEEMS

LIMITLESS, AND IT IS PROVERBIAL_THAT THE FINEST IDEAS EMERGE ON THE

WAY BACK FROM THE COURTHOUSE, THE ADVOCATE’S WORK, THEREFORE, IS

NOT READILY CAPABLE OF LATER AUDIT LIKE A BOOKKEEPER’S, OF COURSE,

NOT ALL ™ ACTIVITY OF THE ADVOCATE HAS THIS HIGHLY SUBJECTIVE

QUALITY, 1T I$ POSSIBLE TO EXAMINE THE SUFFICIENCY OF HIS PR PARA~

TION AND THE ADEQUACY OF HIS xROWLEDGE OF THE RELEVANT LAW, REVIEW

MAY DISCLOSE FAILURES AT THE TRIAL, AL

WILL INFORM THE JUDGMENT ON A RETROSPECTIVE INQUIRY WHETHER COUNSEL

ADEQUATELY PERFORMED HIS DUTY, BUT SINCE WHAT IS REQUIRED IS

NORMAL AND NOT EXCEPTIONAL REPRESENTATION, THERE 1S ROOM FOR THE

REALIZATION THAT IT WOULD BE DIFFICULT TO FIND A CASE WHERE EVEN

THE ABLEST AND MOST EXPERIENCED TRIAL LAWYER WOULD BE COMPLETELY

SATISEIED AFTER A SEARCHING RE~EXAMINATION OF HIS CONDUCT OF A

ASE,

EV. UNITED 432 F.2p 730, 736-

ORE |v; UNITED States, 432 F.2p 730, 736-37 (3p Cir. 1970)

24C

MooRE Vv. UNITED STATES, SUPRA, AT THE TIME OF RELATOR’S TRIAL,

THE _ PERMITTED THE TRIAL JUDGE TO EXPRESS HIS OPINION IN THE

CASE,

",.,1T IS ALWAYS THE PRIVILEGE AND SOME-

TIMES THE DUTY OF A TRIAL JUDGE TO EXPRESS

HIS OWN OPINION, INCLUDING HIS OPINION OF

THE WEIGHT AND THE EFFECT OF THE EVIDENCE OR

ITS POINTS OF STRESS AND WEAKNESS OR EVEN

THE GUILT OR INNOCENCE OF THE DEFENDANT

AND THE VERDICT WHICH IN HIS JUDGMENT,

THE.JURY SHOULD RENDER

Orr, 41) Bay BBO. 372 SOT THe

envy v. CHAM 367° Pa, ey 164

' MPHASIS ADDED, )

MOREOVER, THIS OPINION OR COMMENT IS REQUIRED TO BE

FAIRLY OR TEMPERATELY STATED, CLEARLY LEAVING THE JURY FREE

TO REACH AN INDEPENDENT CONCLUSION,

4

IN RUPPORT OF HjS POSITION RELATOR RELIES UPON THE SUPREME , [OURT

F

NNSYLVANIA S_DECISION IN V,

Fa, 00, 2808. g0.72, (18/0). aND vs boINss DP Pa,

94, -321°K, 20943 19/4), BOTH OF WHICH WERE DECIDED SEVERAL

YEARS AFTER RELATOR S TRIAL, HOWEVER, EVEN ASSUMING ARGUENDO

THESE DECISIONS APPLY RETROACTIVELY AND THAT COUNSEL SHOULD HAVE

POSSESSED THE FORESIGHT TO ANTICIPATE THEM, | BELIEVE THIS

RELIANCE IS MISPLACED. IN ARCHANBALT, SUPRA, THE COURT ANNOUNCED

A NEW RULE THAT THE TRIAL JUDGE COULD NO LONGER EXPRESS AN OPINION

AS TO THE GUILT OR INNOCENCE OF AN ACCUSED, THERE IS NO EVIDENCE

THAT THE TRIAL JUDGE EXPRESSED SUCH AN OPINION IN THIS CASE WITH

RESPECT TO RELATOR AND THUS THAT CASE IS INAPPLICABLE,’ IN

SUPRA, THE ACCUSED HAD ADMITTED COMMITTING THE HOMICIDE BUT

ASSERTED THE DEFENSES OF INTOXICATION AND INSANITY IN AN EFFORT

TO LESSEN THE DEGREE OF GUILT. FOUR MEMBERS OF THE SUPREME CouRT

OF FENNSYLVANIA EXPRESSED THE VIEW THAT IT WAS INAPPROPRIATE FOR

THE COURT. TO COMMENT UPON THE DEGREE OF GUILT WHERE THAT WAS THE

ONLY ISSUE FOR THE JURY TO DECIDE. RELATOR HOWEVER CONCEDED AT

THE TRIAL THAT THE CRIME AMOUNTED TO FIRST DEGREE MURDER BUT

BASED HIS DEFENSE UPON THE THEORY THAT THE EVIDENCE WAS INSUFFICIENT

TO ESTABLISH HIS GUILT, [HUS, THE PRINCIPLE ANNOUNCED IN

SUPRA, IS LIKEWISE INAPPLICABLE HERE,

25C

] BELIEVE THIS TEST WAS SATISFIED, AFTER HIS COMMENTS, e

THE COURT REPEATEDLY REMINDED THE JURORS THAT HE WAS MERELY

STATING HIS OPINION, THE REMARKS WERE NOT BINDING UPON THEM

AND THAT THE ULTIMATE DETERMINATION OF THE FACTS AND THE 7

VERDICT WAS SOLELY THAT OF THE PANEL,

ADDITIONALLY, THE CASE SUB JUDICE COMES TO THIS COURT ON

COLLATERAL ATTACK FROM A STATE CONVICTION, IN THAT CIRCUMSTANCE,

A DIFFERENT STANDARD OF REVIEW APPLIES,

As THE SuPREME CouRT OBSERVED IN SPLAWN V. CALIFORNIA, e

—__ U.S. —_, 45 USLW 4574, 4575 (US June 1977), WHERE THE

PROSECUTIONS OCCUR IN FEDERAL COURTS:

"(O)UR AUTHORITY TO REVIEW JURY INSTRUCTIONS

IS A GOOD DEAL BROADER THAN IS OUR POWER TO ae

UPSET STATE COURT CONVICTIONS BY REASON OF

sear ONS .GIVEN DURING THE RSE OF _A

Huds, maces amas BEE"

Ne CAN EXERCISE THE LATTER aiiiox 3 ONLY

IF THE INSTRUCTION RENDERS THE SUBSEQUENT

FONVICTION VIQLATIVE OF THE UNITED STATES

ONSTITUTION, (EMPHASIS ADDED, e

IN HENDERSON Vv. KipBE, __ U.S, __, 45 USLW 4457 (US

May 16, 1977), ALSO A HABEAS CORPUS CASE, THE COURT OF APPEALS

RELIED ON IN RE WINSHIP, 397 U.S, 358 (1970) IN REVERSING THE

DENIAL OF A WRIT, THE APPELLATE CouRT HAD CONCLUDED THAT

FAILURE OF THE STATE TRIAL COURT TO CHARGE ON CAUSATION IN A

COMPLEX HOMICIDE CASE HAD RESULTED IN “AN IMPERMISSIBLE RISK

THAT THE JURY HAD NOT MADE A FINDING THAT THE CONSTITUTION

REQUIRES.” 45 USLW at 4459, IN REVERSING, THE SUPREME CouRT

STATED:

260

"THE BURDEN OF DEMONSTRATING AN ERRONEOUS

INSTRUCTION WAS SO PREJUDICIAL THAT IT

WILL SUPPORT A COLLATERAL ATTACK ON THE :

CONSTITUTIONAL VALIDITY OF A STATE COURT'S

JUDGMENT IS EVEN GREATER bog THE SHOWING

REQUIRED TO ESTABL]SH RROR ON

DIRECT APPEAL,” is ISLW at aaeo.

IT IS MY JUDGMENT THAT RELATOR HAS NOT MET HIS BURDEN OF

DEMONSTRATING THAT THE INSTRUCTION OF THE COURT WAS SO PREUU-

DICIAL AS TO BE VIOLATIVE OF THE UNITED States ConsTITUTION.

B, RELATOR’S NEXT CONTENTION IS THAT TRIAL COUNSEL WAS

INEFFECTIVE FOR FAILING TO OBJECT TO THE INTRODUCTION OF

EVIDENCE THAT RELATOR HAD EXERCISED IN HIS RIGHT TO REMAIN

SILENT UNTIL HE HAD OBTAINED COUNSEL. SGT, HUESTON TESTIFIED

FOR THE COMMONWEALTH AT THE TRIAL OF RELATOR ON JUNE 22, 1966,

ON DIRECT EXAMINATION HE WAS ASKED THE FOLLOWING QUESTIONS AND

GAVE THE FOLLOWING ANSWERS:

"Q, (By Mr. Spracue) You THEN ASKED THE

DEFENDANT DID HE KNOW JOHN GOREY, AND

WHAT WAS STATED:

to Gon DETECTIVE HUESTON) HE SAID HE AND

JOHN GOREY WERE BUSINESS ASSOCIATES, BUT HE

WASN'T IN THE BUILDING WHEN GOREY WAS KILLED.

"WE THEN ASKED HIM WHERE HE WAS, HE SAID THAT

HE WOULD ANSWER NO FURTHER QUESTIONS UNTIL HE

CALLED AN ATTORNEY,

"Q, DID YOU THEN CONTACT AN ATTORNEY?

sr MaTAE" RBA AjpsrTomeY-”

IN DEALING WITH THIS PARTICULAR ISSUE THE SUPREME COURT OF

PENNSYLVANIA REFUSED TO REACH THE MERITS OF THIS CLAIM, THE

COURT STATED:

27C

“ALTHOUGH THIS GROUND FOR RELIEF WAS ALLEGED

IN THE AMENDED BC AH.A. PETITION, IT WAS NOT

PURSUED AT THE TIME OF THE HEARING NOR WAS IT

ISCUSSED IN THE BRIEF TO THE HEARING COURT,

CCORDINGLY, WE WILL NOT CONSIDER THE QUESTION

ON APPEAL...

IT IS THUS INCUMBENT UPON THIS COURT TO DETERMINE WHETHER

OR NOT ON THIS PARTICULAR GROUND RELATOR HAS EXHAUSTED HIS

STATE REMEDIES, |

THE Supreme CourT’s DECISION IN PycaRD v. Connor, 404 U.S,

279 (1971) PRovIDES THE INITIAL STEP IN MY ANALYSIS. CONNOR

CONTENDED TO THE STATE COURT THAT HIS STATE-COURT CONVICTION

WAS INVALID BECAUSE THE PROSECUTION HAD NOT BEEN INSTITUTED AS

A RESULT OF AN INDICTMENT RETURNED BY A GRAND JURY, HE CLAIMED

THAT THE GRAND Jury CLAUSE OF THE FIFTH AMENDMENT HAD BEEN

INCORPORATED WITHIN THE Due Process CLAUSE OF THE FOURTEENTH

AMENDMENT, THUS MAKING IT APPLICABLE TO THE STATE, THIS

ARGUMENT WAS REJECTED BY THE STATE COURTS AND CONNOR PETITIONED

FOR A FEDERAL HABEAS RELIEF, A SEPARATE EQUAL PROTECTION CLAIM

WAS SUGGESTED FOR THE FIRST TIME IN THE FEDERAL COURT, ~ THE

SuPREME COURT REVERSED THE CourT OF APPEALS, RULING THAT A

FEDERAL HABEAS CORPUS COURT MAY NOT ENTERTAIN AN ISSUE PRESENTED

TO IT UNLESS THE “SAME CLAIM” HAD BEEN URGED UPON THE STATE

COURTS. IN ORDER TO MEET THIS STANDARD, THE SUPREME COURT

STATED THAT THE ARGUMENT BROUGHT BEFORE THE FEDERAL COURT MUST

BE “THE SUBSTANTIAL EQUIVALENT” OF A CLAIM ALREADY PRESENTED TO

THE STATE COURTS; “THE SUBSTANCE OF” THE CLAIM RAISED IN THE

28

FEDERAL COURT MUST HAVE FIRST BEEN SUBMITTED TO THE STATE COURT,

ID, AT 277, 278, FOLLOWING THESE GUIDELINES, THE SUPREME CouRT

HELD THAT STATE-COURT REMEDIES HAD NOT BEEN EXHAUSTED BY CONNOR

WITH REGARD TO THE EQUAL PROTECTION CONTENTION,

LATER DECISIONS OF THE SUPREME COURT ARE HELPFUL IN

CLARIFYING THE SCOPE OF THE WORD “CLAIM” IN DETERMINING WHETHER

A CONTENTION HAS FIRST BEEN TENDERED TO THE STATE COURTS FOR

PURPOSES OF EXHAUSTION, THE COURT HAS OBSERVED THAT THE “METHOD

OF ANALYSIS” ASSERTED IN THE FEDERAL COURT MUST HAVE BEEN

“READILY AVAILABLE TO THE STATE CouRT”. STANLEY V. ILLINOIS,

405 U.S. 645, 658 n, 10 (1972) (pictum). IT HAS BEEN HELD THAT

THE PETITIONER MUST GIVE THE STATE SYSTEM THE OPPORTUNITY TO

RESOLVE THE FEDERAL CONSTITUTION, "ISSUES" BEFORE HE GOES TO THE

FEDERAL COURT FOR HABEAS RELIEF. IN FRANCISCO, THE SUPREME

CouRT HELD THAT THE “ISSUES” RAISED BY THE PETITIONER IN A

FEDERAL HABEAS COURT HAD BEEN EXHAUSTED IN THE STATE COURTS,

THE INTERVENTION OF A DECISION BY THE STATE SUPREME COURT THAT

ARGUABLY WOULD HAVE AFFORDED THE PETITIONER RELIEF IN THE STATE

COURTS WAS HELD NOT TO PRECLUDE FEDERAL HABEAS REVIEW, SEE ALSO

PitcHess v. Davis, 421 U.S. 482, 487 (1975) (PER cuRIAM). WITHIN

THE CONTOURS OF A PARTICULAR ARGUMENT, HOWEVER, NOT EVERY DETAIL

NEED HAVE TO BE PUT BEFORE THE STATE COURT IN ORDER TO PRESENT

ALL FACETS OF THE ARGUMENT TO THE FEDERAL COURT ON A PETITION FOR

HABEAS. SMITH V. GOGUEN, 415 U.S, 566, 576-77 (1974) (pictum).

RES V. GATHRIGHT, 419 U.S. 59, 63 (1974) (PER cuRlAM).

29C

AccorD UNITED STATES Ex REL, JOHNSON v. JOHNSON, 531 F.2p 169,

173 (3rp Cir. 1976),

IN THE CASE BEFORE THIS COURT IT IS CLEAR THAT THIS GROUND

WAS RAISED IN THE P,C.H.A, PETITION. - LIKEWISE THE GROUND WAS

RAISED IN RELATOR’S BRIEF SUBMITTED BY COUNSEL TO THE STATE

SUPREME CoURT UNDER ARGUMENT NUMBER 9 WHEN IT WAS STATED

"APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY REASON

OF FAILURE TO OBJECT TO THE INTRODUCTION OF EVIDENCE IN VIOLATION

OF YOUR APPELLANT'S CONSTITUTIONAL RIGHT TO SILENCE AND TO

COUNSEL.” AGAIN IN THE “STATEMENT OF QUESTIONS PRESENTED”

APPELLANT ’S BRIEF BEFORE THE SuPREME CouRT OF PENNSYLVANIA READS

AS FOLLOWS:

nk WA ae yORRTED FRB {STANCE

H i er ae

OURT),

THE ARGUMENT PRESENTED BEFORE THIS COURT ON FEDERAL HABEAS

CORPUS IS CLEARLY THE SAME, HERE RELATOR ARGUES THAT HE WAS

DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO

OBJECT TO TESTIMONIAL REFERENCE BY A POLICE DETECTIVE (TO) YouR

PETITIONER'S RIGHT TO REMAIN SILENT AND HIS RIGHT TO REFUSE TO

ANSWER QUESTIONS WITHOUT THE ASSISTANCE OF COUNSEL,

IT 1S THUS VERY CLEAR THAT RELATOR DID GIVE THE STATE

SYSTEM THE OPPORTUNITY TO RESOLVE THE FEDERAL CONSTITUTIONAL

ISSUE AND THAT NOT EVERY DETAIL NEED HAVE BEEN PUT BEFORE THE

STATE COURT IN ORDER TO PRESENT ALL FACETS OF THE ARGUMENT TO

30

THE FEDERAL COURT ON THE PETITION FOR HABEAS AS HERE, | THERE-

FORE WILL CONSIDER THIS ARGUMENT ON ITS MERITS,

AT RELATOR’S TRIAL, A POLICE OFFICER TESTIFIED WITHOUT

OBJECTION THAT AFTER RELATOR STATED THAT HE WAS NOT IN THE UNION

HALL AT THE TIME OF THE HOMICIDES, RELATOR ADVISED THE OFFICER

THAT HE WOULD ANSWER NO FURTHER QUESTIONS UNTIL HE HAD CONTACTED

AN ATTORNEY, (N.T, TRIAL 469-470 supra),

IT IS THE RELATOR’S CONTENTION THAT COUNSEL IN FAILING TO

OBJECT TO THE QUESTIONS AND ANSWERS GIVEN BY SGT, HUESTON

CONSTITUTED AN ATTORNEY'S IGNORANCE OF RELEVANT CASE LAW AND

THERBY RENDERED HIS ASSISTANCE INEFFECTIVE,

IT IS OF COURSE SETTLED THAT REFERENCES TO AN ACCUSED’S

EXERCISE OF HIS CONSTITUTIONAL RIGHTS PURSUANT TO MIRANDA V.

Arizona, 384 U.S, 436 (1966) ARE AN IMPERMISSIBLE SUBJECT FOR

PROSECUTORIAL COMMENT OR TESTIMONY, GRIFFIN V. CALIFORNIA, 380

U.S, 699 (1965); Baker v. Unitep States, 357 F.2p 11 (1966);

UNITED STATES v. KRostack, 426 F.2p 1129 (7TH Cir. 1970), Tris

RELATOR HAD A CONSTITUTIONAL RIGHT TO REFUSE TO MAKE A STATEMENT

UNTIL HIS REQUEST THAT A LAWYER BE PRESENT WAS MET, MIRANDA V,

ARIZONA. SUPRA, THEREFORE, I WOULD FIND LITTLE DIFFERENCE BETWEEN

THE PREJUDICE RESULTING FROM THE TESTIMONY ADMITTED IN THE CASE

BEFORE US, AND A PROSECUTOR'S COMMENT BEFORE A JURY ON A

DEFENDANT'S EXERCISE OF HIS CONSTITUTIONAL RIGHT NOT TO TAKE THE ©

WITNESS STAND. SUCH COMMENTS HAVE BEEN HELD TO BE REVERSIBLE

ERROR, GRIFFIN V, CALIFORNIA, SUPRA. THE TESTIMONY ELICITED HERE

COULD WELL HAVE LED THE JURY TO INFER GUILT FROM RELATOR’S REFUSAL

31C

TO MAKE A STATEMENT, | THINK THE EXERCISE OF A CONSTITUTIONAL

PRIVILEGE SHOULD NOT INCUR THIS PENALTY, THE FIFTH CIRCUIT HAS

STATED: “NE WOULD BE NAIVE IF WE FAILED TO RECOGNIZE THAT MOST

LAYMEN VIEW AN ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE AS A

BADGE OF GUILT.” WALKER v. Unitep States, 404 F.2p 900 (1968),

THE COMMONWEALTH ARGUES THAT THERE WAS NO TESTIMONY OR COMMENT

CONCERNING THE IMPLICATIONS OF THE REQUEST. THEY FURTHER STATE

THAT THE TESTIMONY WAS AN ISOLATED EPISODE IN A LENGTHY TRIAL AND

THAT AN OBJECTION MAY HAVE ONLY HIGHLIGHTED RELATOR’S REQUEST FOR

AN ATTORNEY. HERE, HOWEVER, AS DISTINGUISHED FROM UNITED STATES

Vv. BEcERA-SoTo, 387 F.2p 792 (7TH Cir. 1967), cERT peniep 391 U.S,

928, NO CAUTIONARY INSTRUCTION WAS GIVEN WHEN SGT. HUESTON

DISCUSSED RELATOR’S SILENCE, AND, THE VIOLATION OF RELATOR’S

CONSTITUTIONAL RIGHTS IS OF GREATER SIGNIFICANCE IN VIEW OF THE

THINNESS OF THE EVIDENCE AGAINST HIM IN THIS RECORD. SEE CHAPMAN

Vv. CALIFORNIA, 386 U.S, 18,

THUS, WE COME TO THE QUESTION OF WHETHER OR NOT THE FAILURE

IQ _ OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS

INSTANCE, IN DETERMINING THIS ISSUE WE ARE FACED IMMEDIATELY WITH

THE RECENT DECISION OF THE SUPREME CouRT OF THE UNITED STATES

IN WAINWRIGHT, SECRETARY, DEPARTMENT OF OFFENDER REHABILITATION

OF FLORIDA V. SYKES, __ ___» DECIDED June 23, 1977,

NuMBER 75-1578, THIS DECISION HELD THAT THE DEFENDANT'S FAILURE

TO MAKE A TIMELY OBJECTION UNDER THE FLORIDA CONTEMPORANEOUS

OBJECTION RULE TO THE ADMISSION OF INCULPATORY STATEMENTS, ABSENT

32C

A SHOWING OF CAUSE FOR THE NONCOMPLIANCE AND SOME SHOWING OF

ACTUAL PREJUDICE, BARRED FEDERAL HABEAS CORPUS REVIEW OF HIS

MIRANDA CLAIM. THE DECISION IS CRITICAL BECAUSE OF THE OVER-

RULING OF THE LEADING CASE oF Fay v, Noa, 372 U.S, 391 (1963).

WAINWRIGHT HELD THAT THE SWEEPING LANGUAGE SET FORTH IN FAY V,

NOIA, WHICH WOULD RENDER A STATE'S TIMELY-OBJECTION RULE

INEFFECTIVE TO BAR REVIEW OF UNDERLYING FEDERAL CLAIMS IN

FEDERAL HABEAS CORPUS PROCEEDINGS-ABSENT A “KNOWING WAIVER” OR A

“DELIBERATE BYPASS” OF THE RIGHT TO SO OBJECT, WAS REJECTED AS

ACCORDING TOO LITTLE RESPECT TO THE STATE TIMELY OBJECTION RULE.

CONVERSELY, THE RULE OF Fay v. NOlA, MAY ENCOURAGE DEFENSE

LAWYERS TO TAKE THEIR CHANCES ON A VERDICT OF NOT GUILTY IN A

STATE TRIAL COURT, INTENDING TO RAISE THEIR CONSTITUTIONAL CLAIMS

IN A FEDERAL HABEAS CORPUS COURT IF THEIR INITIAL GAMBLE FAILS,

AND DETRACTS FROM THE PERCEPTION OF THE TRIAL OF A CRIMINAL CASE

AS A DECISIVE AND PORTENTOUS EVENT, THE COURT STATED AT PAGE 1/7:

"... UNDER THE RULE OF Fay v. NOLA, SUPRA,

STATE APPELLATE COURTS KNOW THAT A FEDERAL

CONSTITUTIONAL ISSUE RAISED FOR THE FIRST

TIME IN THE PROCEEDING BEFORE THEM MAY WELL

BE DECIDED JN ANY EVENT BY A FEDERAL HABEAS

TRIBUNAL, |HUS THEIR CHOICE IS BETWEEN

ADDRESSING THE ISSUE NOTWITHSTANDING THE

PETITIONER'S FAILURE TO TIMELY OBJECT, OR

ELSE FACE THE PROSPECT THAT THE FEDERAL

HABEAS COURT WILL DECIDE THE QUESTION

WITHOUT THE BENEFIT OF THEIR VIEWS,

THE FAILURE OF THE FEDERAL HABEAS COURTS

GENERALLY TO REQUIRE COMPLIANCE WITH A

CONTEMPORANEOUS OBJECTION RULE TENDS TO

DETRACT FROM THE PERCEPTION OF THE TRIAL

OF A CRIMINAL CASE IN STATE COURT AS A

DECISIVE AND PORTENTOUS EVENT,

DEFENDANT HAS BEEN ACCUSED OF A SERIOUS

33

CRIME, AND THIS IS THE TIME AND PLACE SET

FOR HIM TO BE TRIED BY A JURY OF HIS PEERS

AND FOUND EITHER GUILTY OR NOT GUILTY BY

THAT JURY, O THE GREATEST EXTENT POSSIBLE

ALL ISSUES WHICH BEAR ON THIS CHARGE SHOULD

BE DETERMINED IN THIS PROCEEDING: THE ACCUSED

IS IN THE COURTROOM, THE JURY IS IN THE BOX,

THE JUDGE IS ON THE BENCH, AND THE WITNESSES,

HAVING BEEN SUBPOENAED “ DULY SWORN, AWAIT

THEIR TURNS TO TESTIFY. OCIETY S RESOURCES

HAVE BEEN CONCENTRATED AT THAT TIME AND PLACE

IN ORDER TO DECIDE, WITHIN THE LIMITS OF

HUMAN FALLIBILITY, THE QUESTION OF GUILT OR

INNOCENCE OF ONE OF ITS CITIZENS, NY

PROCEDURAL RULE WHICH ENCOURAGES THE RESULT

THAT THOSE PROCEEDINGS BE AS FREE OF ERROR

AS POSSIBLE IS THOROUGHLY DESIRABLE, AND THE

CONTEMPORANEOUS OBJECTION RULE SURELY FALLS

WITHIN THIS CLASSIFICATION,

As IN WAINWRIGHT, RELATOR HAS ADVANCED NO EXPLANATION

WHATEVER FOR HIS COUNSEL’S FAILURE TO OBJECT AT TRIAL TO THE

TESTIMONY BROUGHT OUT BY THE PROSECUTOR,

THE TOUCHSTONE OF Fay Vv, NOIA, IS THE EXERCISE OF VOLITION

BY THE DEFFNDANT HIMSELF WITH RESPECT TO HIS OWN FEDERAL

CONSTITUTIONAL RIGHTS, IN CONTRAST, THE CLAIM IN THE CASE

BEFORE US RELATES TO EVENTS DURING THE TRIAL ITSELF. TYPICALLY,

HABEAS PETITIONERS CLAIM THAT UNLAWFULLY SECURED EVIDENCE WAS

ADMITTED AND THAT IMPROPER TESTIMONY WAS ADDUCED OR THAT AN

IMPROPER JURY CHARGE WAS GIVEN, BUT UNLIKE FAY, PRESERVATION OF

THIS TYPE OF CLAIM UNDER STATE PROCEDURAL RULES DOES NOT GENERALLY

INVOLVE AN ASSERTION BY THE DEFENDANT HIMSELF; RATHER THE DECISION

TO ASSERT OR NOT TO ASSERT CONSTITUTIONAL RIGHTS OR CONSTITUTIONALLY

BASED OBJECTIONS AT TRIAL IS NECESSARILY ENTRUSTED TO THE

DEFENDANT'S ATTORNEY, WHO MUST MAKE ON-THE-SPOT DECISIONS AT

34C

VIRTUALLY ALL STAGES OF A CRIMINAL TRIAL, AS A PRACTICAL MATTER,

A CRIMINAL DEFENDANT IS RARELY, IF EVER, IN A POSITION TO DECIDE,

FOR EXAMPLE WHETHER CERTAIN TESTIMONY IS HEARSAY AND, IF SO,

WHETHER IT IMPLICATES INTERESTS PROTECTED BY THE CONFRONTATION

CLAUSE; INDEED IT IS BECAUSE “EVEN THE INTELLIGENT AND EDUCATED

LAYMAN HAS SMALL AND SOMETIMES NO SKILL IN THE SCIENCE OF LAW”

THAT THE SUPREME COURT HELD THAT CONSTITUTIONALLY (SIC) REQUIRED

THAT EVERY DEFENDANT WHO FACES THE POSSIBILITY OF INCARCERATION BE

AFFORDED COUNSEL. ARGERSINGER V. HamLIn, 407 U.S. 25 (1972),

ONCE COUNSEL IS APPOINTED, THE DAY-TO-DAY CONDUCT OF THE

DEFENSE RESTS WITH THE ATTORNEY.. HE, NOT THE CLIENT, HAS THE

IMMEDIATE-AND ULTIMATE-RESPONSIBILITY OF DECIDING IF AND WHEN

TO OBJECT, WHICH WITNESSES, IF ANY, TO CALL, AND WHAT DEFENSES TO

DEVELOP, NOT ONLY DO THESE DECISIONS REST WITH THE ATTORNEY,

BUT SUCH DECISIONS MUST, AS A PRACTICAL MATTER, BE MADE WITHOUT

CONSULTING THE CLIENT,

THE TRIAL PROCESS DOES NOT PERMIT THE TYPE OF FREQUENT AND

PROTRACTED INTERRUPTIONS WHICH WOULD BE NECESSARY IF IT WERE

REQUIRED THAT CLIENTS GIVE KNOWING AND INTELLIGENT APPROVAL TO

EACH OF THE MYRIAD TACTICAL DECISIONS AS THE TRIAL PROCEEDS,

SINCE TRIAL DECISIONS ARE OF NECESSITY ENTRUSTED TO THE

ACCUSED’S ATTORNEY, THE EAY STANDARD OF “KNOWING AND INTELLIGENT

WAIVER” IS SIMPLY INAPPLICABLE, MOREOVER, WHILE THE TESTIMONY

as SUCH ath Bae ap he yd TO ope TO PLEAD GUILTY, WAIVE A

JURY,

TO MAKE RT i TA DARDS BLATANG TO THE PROSECUTION

UNCTION sia “DeFENSE UNCTION § T2

350

IN QUESTION IS NOW CLEARLY IMPROPER UNDER THE PENNSYLVANIA CASE OF

CoMMONWEALTH V. HALDEMAN, 449 Pa, 367 (1972), HALDEMAN WAS NOT

DECIDED UNTIL SOME FIVE YEARS AFTER RELATOR’S TRIAL AND WAS THE

FIRST PENNSYLVANIA DECISION TO HOLD THIS TYPE OF TESTIMONY

INADMISS'BLE,

] RECOMMEND TO THIS COURT THAT ON THIS ISSUE A FINDING BE

MADE THAT COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO

THE TESTIMONY REFERRING TO RELATOR’S EXERCISE OF HIS CONSTITUTIONAL

RIGHTS,

ly.

THE CLAIM OF INEFFECTIVE ASS CE OF NSE

IN FAILING [0 PRE JEU L E_ UFFERING

A EURE | ME Ur E TRIAL JUUGE,

ON THE DATE JURY SELECTION WAS SCHEDULED TO COMMENCE IN THE

TRIAL OF THE RELATOR, THE ASSISTANT DISTRICT ATTORNEY REQUESTED A

CONTINUANCE OF THE CASE AND INDICATED FOR THE RECORD THAT HE

DECLINED TO DISCLOSE THE REASON, (N,T. TRiat May 17, 1967, Pp, 35,

48), OVER THE DEFENSE OBJECTION, THE REASON FOR THE REQUEST FOR

CONTINUANCE WAS PLACED IN A SEALED ENVELOPE AND DELIVERED TO THE

TRIAL JUDGE. THE TRIAL NOTES OF TESTIMONY REFLECT THE FACT THAT

THE CONTENTS OF THAT ENVELOPE WERE NEVER DISCLOSED TO DEFENSE

COUNSEL, AND TRIAL COUNSEL, JuDGE DIBOoNA, TESTIFIED AT THE PosT-

CONVICTION PROCEEDINGS THAT HE NEVER LEARNED THE CONTENTS OF THAT

ENVELOPE. (N,T. Post-Conviction P, 70), HE STATED FURTHER THAT

HE HAD NO IDEA WHETHER THE COMMUNICATION BETWEEN THE ASSISTANT

36C

District ATTORNEY AND THE TRIAL JUDGE HAD ANYTHING TO DO WITH

TRIAL EVIDENCE IN THE CASE, AND HE CHARACTERIZED THE SITUATION

IN WHICH HE FOUND HIMSELF AS “OPPOSED TO EVERY CONCEPT OF

JUSTICE, EVERY CONCEPT OF ETHICS, EVERY CONCEPT OF PROPRIETY

FOR A PARTY AND LITIGANT TO HAVE A COMMUNICATION WITH THE JUDGE

TO THE EXCLUSION OF THE OTHER SIDE, AND HAVE AN IRONCLAD RULE THAT

THE OTHER SIDE MAY NOT KNOW ABOUT,” (N,T, Post-Conviction P, 47),

IT IS CONTENDED THAT NEITHER JUDGE DIBoNA Nor Mr. PERUTO EVER

RAISED THIS ISSUE IN POST-TRIAL MOTIONS AND THAT NO BRIEF WAS EVER

FILED ON RELATOR’S BEHALF ON APPEAL, THE TRIAL JUDGE HIMSELF

TESTIFIED IN POST-CONVICTION PROCEEDINGS AT THE REQUEST OF THE

ASSISTANT J)ISTRICT ATTORNEY RELATING TO THE COMMONWEALTH’S HAVING

COME INTO RECENT POSSESSION OF WEAPONS WHICH IT WISHED TO HAVE

TESTED PRIOR TO COMMENCEMENT OF TRIAL. (N.T,. 12-14; 53-56),

RELATOR ARGUES THAT WHATEVER MAY HAVE BEEN THE SUBSTANCE OF THE

COMMONWEALTH’S EVIDENCE, WHETHER FAVORABLE OR UNFAVORABLE TO THE

DEFENSE, THE CONDUCT OF THE ASSISTANT DISTRICT ATTORNEY IN THE

TRIAL COURT WITH RESPECT TO THE RECEPTION OF A PRIVATE COMMUNICATION,

MANY YEARS LATER FOUND TO HAVE RELATED TO WEAPONS SHOULD HAVE BEEN

DISCLOSED TO THE RELATOR’S COUNSEL AND THE POSITION WITH RESPECT TO

THIS MOTION SHOULD HAVE BEEN PRESERVED FOR POST-TRIAL MOTIONS AND

SHOULD HAVE BEEN APPEALED. RELATOR FURTHER ARGUES THAT THE

CONSEQUENCE OF THE CONDUCT WAS LEFT WITH THE SPECULATION THAT THE

BALLISTICS EXPERT IN FACT HAD SOME WEAPONS, EXAMINED SOME, AND

PREPARED REPORTS WITH RESPECT TO THEM, WHEREAS THE DEFENSE HAD

37C

NO OPPORTUNITY TO AVAIL ITSELF EITHER OF NEGATIVE OR POSITION

(SIC) INFERENCES THEREFROM, NOW RELATOR RELIES ON BRapy V,

MARYLAND, 373 U.S, 83, AND ARGUES THAT THE SUPPRESSION OF THIS

MATERIAL VIOLATED HIS DUE PROCESS RIGHTS,

AT TRIAL, THE BALLISTICS EXPERT TESTIFIED THAT HE HAD TEST

FIRED CERTAIN GUNS DURING HIS INVESTIGATION AND FOUND THAT THESE

WEAPONS WERE NOT USED TO COMMIT THE CRIMES HEREIN INVOLVED,

THUS, NOT ONLY WAS THE OBJECTION NOT ADDRESSED TO THE PROPRIETY

OF THE TRIAL COURT'S RULING PERMITTING THE WITNESS TO EXAMINE

THE WEAPONS, BUT THE ACTUAL R“SULTS WERE NOT HARMFUL TO THE

DEFENSE,

THE THRUST OF THE OBJECTION WAS DIRECTED TO A PRIVATE

COMMUNICATION BETWEEN THE COURT AND PROSECUTION IN WHICH THE

DEFENSE WAS EXCLUDED. WHILE THE SuPREME CourT OF PENNSYLVANIA

FOUND THAT SUCH A PRACTICE SHOULD NOT BE CONDONED, IT DID NOT

FIND THAT ANY PREJUDICE TO RELATOR RESULTED IN THIS CASE, THE

COURT THUS FOUND THAT IF COUNSEL HAD PRESSED THIS OBJECTION ON

APPEAL IT WOULD NOT HAVE JUSTIFIED THE AWARD OF A NEW TRIAL,

THUS, COUNSEL COULD NOT BE FOUND TO BE INEFFECTIVE FOR FAILING

TO PRESERVE AN OBJECTION WHICH HAD NO PROBABILITY TO SUCCESS

(sic), MOREOVER, THE CONTENTION THAT THE FAILURE OF THE COMMON-

WEALTH TO MAKE AVAILABLE TO THE DEFENSE THESE REPORTS IN ANY

WAY VIOLATED RELATOR’S DUE PROCESS RIGHTS UNDER BRapy Vv,

MARYLAND, SUPRA, 1S UNWARRANTED. BRADY, SUPRA, REQUIRES THE

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PROSECUTION TO FURNISH THE DEFENSE EVIDENCE ON DEMAND WHICH WOULD

TEND TO EXCULPATE HIM OR REDUCE THE DEGREE OF PENALTY. AS

INDICATED ABOVE, THE INFORMATION WAS INTRODUCED DURING THE TRIAL

AND THE DEFENSE HAD THE OPPORTUNITY OF USING IT IN ANY MANNER

IT DEEMED APPROPRIATE,

In UNITED STATES v. AGurs, 427 U.S. 97 (1976) THE Supreme

COURT CONSIDERED WHETHER THE PROSECUTOR HAD ANY CONSTITUTIONAL

DUTY TO VOLUNTEER EXCULPATORY MATTER TO THE DEFENSE, AND IF. SO,

WHAT STANDARD OF MATERIALITY GAVE RISE TO THAT DUTY. THE COURT

HELD THAT THE PROSECUTOR WILL NOT HAVE VIOLATED HIS CONSTITUTIONAL

DUTY OF DISCLOSURE UNLESS HIS ADMISSION IS OF SUFFICIENT SIGNIFI-

CANCE TO RESULT IN THE DENIAL OF THE DEFENDANT’S RIGHT TO A FAIR

TRIAL. THE COURT NOTED AT PAGE 109:

"4+. THERE IS NO CONSTITUTIONAL REQUIREMENT

THAT THE PROSECUTION MAKE A COMPLETE AND

DETAILED ACCOUNTING TO THE DEFENSE OF ALL

POLICE INVESTIGATORY WORK ON gee ogee

786, 795,

7QORE V, LLINols, 408 U.S,

MPHASIS ADDED,

THE MERE POSSIBILITY THAT AN ITEM OF UNDISCLOSED INFORMATION

MIGHT HAVE HELPED THE DEFENSE, OR MIGHT HAVE AFFECTED THE OUTCOME

OF THE TRIAL, DOES NOT ESTABLISH “MATERIALITY” IN THE CONSTITUTIONAL

SENSE.

THE CONSTITUTIONAL OBLIGATION IS MEASURED NOT BY THE MORAL

CULPABILITY OR THE WILFULNESS OF THE PROSECUTOR. IF EVIDENCE

HIGHLY PROBATIVE OF INNOCENCE IS IN HIS FILE, HE SHOULD BE

PRESUMED TO RECOGNIZE ITS SIGNIFICANCE EVEN IF HE HAS ACTUALLY

OVERLOOKED IT, CF, Giguio v. Unitep States, 405 U.S, 150, 154,

39C

CONVERSELY, IF EVIDENCE HAS NO PROBATIVE SIGNIFICANCE AT ALL,

NO PURPOSE WOULD BE SERVED BY REQUIRING A NEW TRIAL SIMPLY

BECAUSE AN INEPT PROSECUTOR INCORRECTLY BELIEVED HE WAS

SUPPRESSING A FACT THAT WOULD BE VITAL TO THE DEFENSE, JE THE

SUPPRESSION OF EVIDENCE RESULTS IN CONSTITUTIONAL ERROR, IT IS

BECAUSE OF THE CHARACTER OF THE EVIDENCE, NOT THE CHARACTER OF

THE PROSECUTOR. IT NECESSARILY FOLLOWS THAT IF THE OMITTED

EVIDENCE CREATES A REASONABLE DOUBT THAT DID NOT OTHERWISE EXIST,

CONSTITUTIONAL ERROR HAS BEEN COMMITTED, THIS MEANS THAT THE

ADMISSION MUST BE EVALUATED IN THE CONTEXT OF THE ENTIRE RECORD.

IF THERE IS NO REASONABLE DOUBT ABOUT GUILT WHETHER OR NOT THE

ADDITIONAL EVIDENCE IS CONSIDERED, THERE IS NO JUSTIFICATION FOR

A NEW TRIAL, IT IS THEREFORE CLEAR THAT NO CONSTITUTIONAL ERROR

HAS BEEN COMMITTED IN THIS CASE BECAUSE THE ACTUAL RESULTS OF

THE TESTS ON THE WEAPONS WERE NOT HARMFUL TO THE DEFENSE AND

WOULD NOT HAVE CREATED A REASONABLE DOUBT EVEN IF THE EVIDENCE

WERE DISCLOSED TO THE DEFENSE BEFORE THE TRIAL,

IT IS ALSO CLAIMED THAT TRIAL COUNSEL’S FAILURE TO PRESERVE _

AN OBJECTION TO THE TRIAL COURT'S DENIAL OF A REQUEST FOR

ADDITIONAL ALLEGED BRADY MATERIAL CONSTITUTED INEFFECTIVE

ASSISTANCE OF COUNSEL. SPECIFICALLY RELATOR CONTENDS THAT THE

PROSECUTION’S CHIEF WITNESS, ONE FRANCIS MCGRATH, HAD MADE

VARIOUS CONTRADICTORY STATEMENTS TO ONE DeTecTIve MCGILL DURING

THE COURSE OF AN INTERVIEW AT POLICE HEADQUARTERS. IT Is

RELATOR’S POSITION THAT HE WAS PREVENTED FROM LEARNING OF THIS

»40C

INFORMATION UNTIL AFTER THE CLOSE OF THE TRIAL AND THEREFORE

PRECLUDED FROM SUBPOENING (SIC) THE DETECTIVE AS A DEFENSE

WITNESS, THERE IS HOWEVER, NO FACTUAL BASIS FOR THIS ASSERTION,

QN THE CONTRARY, THE STATE COURT RECORD ESTABLISHES THAT DEFENSE

COUNSEL LEARNED OF THE INTERVIEW WITH MCGILL DURING HIS CROSS-

EXAMINATION OF MCGRATH, |

Py: You WERE THERE ON SUNDAY, RATHER,

June 19, 1S THAT RIGHT:

ANSWER: THAT IS RIGHT,

QUEST 108: AND THAT 1S THE TIME Yoy TALKED

ETECTIVE DuFFY, IS THAT RIGHT:

AnswER: Durry,

QUESTION: THEN YOU WENT BACK ON JUNE 21ST,

THE M NDAY, IS THAT RIGHT SIR...1 AM SORRY,

THE 20TH?

ANSWER: THE 20TH, THAT IS RIGHT,

QUESTION: WHO DID YOU TALK TO THEN, BY THE

WAY :

ROOKS. | TALKED TO OWEN, TALKED TO

Lt, MATTHIS, THAT IS ABOUT ALL | CAN REMEMBER,

wHO | TALKED TO,

NSWER: | TALKED TO D TECTIVE "Pat DETECTIVE

DESPITE THE INFORMATION ILLICITED (SIC) FROM THIS WITNESS,

DEFENSE COUNSEL NEVER ATTEMPTED TO SUBPOENA MCGILL AS A WITNESS

NOR DID THEY REQUEST ANY NOTES THAT MIGHT HAVE BEEN TAKEN BY

McGILL OF HIS CONVERSATIONS WITH MCGRATH. ALTHOUGH BRADY REQUIRES

THE PROSECUTION TO PROVIDE THE DEFENSE UPON REQUEST WITH MATERIAL

IN ITS POSSESSION WHICH WOULD BE BENEFICIAL TO THE DEFENDANT, THE

RECORD HERE REFLECTS THAT THERE WAS NO REQUEST FOR SUCH INFORMATION,

41C

HENCE, THERE WAS NO BRADY VIOLATION FOR TRIAL COUNSEL TO PRESERVE,

Nor, DO | BELIEVE THAT THE FAILURE TO INTRODUCE THESE ALLEGED

INCONSISTENT STATEMENTS FROM THE INTERVIEW CONSTITUTED INEFFECTIVE

ASSISTANCE OF COUNSEL. THE STATEMENTS RELATED ONLY TO THE

QUESTION OF CARCHIDI’'S GUILT OR INNOCENCE, THERE IS, HOWEVER, NO

ASSERTION THAT THESE STATEMENTS HAD ANY DIRECT BEARING UPON THE

INNOCENCE OF THIS RELATOR, THUS, THE ONLY PURPOSE TO BE SERVED

BY THE INTRODUCTION OF THE REMARKS WOULD HAVE BEEN TO IMPEACH

MCGRATH’S CREDIBILITY AS A WITNESS IN THE EYES OF THE JURY,

THE EXTENT TO WHICH DEFENSE COUNSEL CHOOSES TO PURSUE A COLLATERAL

ISSUE IS CLEARLY A MATTER OF JUDGMENT, UPON REVIEW OF THE STATE

COURT RECORD | AM SATISFIED THAT THE DEFENSE EXPLORED THE ISSUE

AS WELL AS HE DEEMED POSSIBLE, DURING THE COURSE OF THE TRIAL,

MCGRATH WAS SKILLFULLY CROSS-EXAMINED BY EXPERIENCED COUNSEL

CONCERNING VARIOUS INCONSISTENT REMARKS MADE TO THE POLICE, AT

THE MEDICAL EXAMINER’S INQUEST AND TO OTHER INDIVIDUALS. THESE

VARIATIONS WERE STRENUOUSLY ARGUED TO THE JURY AS AN ATTACK UPON

THE WITNESSES’ (SIC) CREDIBILITY. HAVING ATTEMPTED TO IMPEACH THE

CREDIBILITY OF THE WITNESS, | BELIEVE THAT COUNSEL’S STEWARDSHIP

WAS NOT INEFFECTIVE MERELY BECAUSE HE DID NOT EXPOSE EVERY

ARGUABLE INCONSISTENCY IN MCGRATH’S TESTIMONY,

VI.

CONFLICT OF INTEREST

SULLIVAN ALLEGES THAT HE WAS DENIED HIS CONSTITUTIONAL

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE

SIXTH AMENDMENT, BECAUSE HIS REPRESENTATION WAS MADE BY TWO

42C

ATTORNEYS WHO WERE BURDENED BY A CONFLICT OF INTEREST BY REASON

OF THEIR SIMULTANEOUS REPRESENTATION OF RELATOR’S TWO CO-

DEFENDANTS, GREGORY CARCHIDI AND ANTHONY DIPASQUALE, THE

COMMONWEALTH, ON THE OTHER HAND, CONTENDS THAT SUCH REPRESENTATION

WAS EFFECTIVE, STATING THAT COUNSEL WAS COMPETENT AND THAT HIS

ACTIONS HAD A REASONABLE BASIS DESIGNED TO EFFECTUATE RELATOR’S

INTERESTS,

RELATOR ADDITIONALLY ASSERTS THAT DEFENSE COUNSELS’ DECISION

NOT TO PERMIT HIM TO TESTIFY ON HIS OWN BEHALF AND TO PRESENT NO

EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, IN THAT

SUCH DECISIONS WERE NOT BASED ON THE UNDIVIDED ASSESSMENT OF HIS

BEST INTEREST, BUT RATHER ON THE CONSIDERATION BY COUNSEL NOT TO

REVEAL THE DEFENSE STRATEGY TO BE USED IN THE TRIALS OF HIS CO-

DEFENDANTS, WHICH WERE SET AT A LATER DATE. ON THIS ISSUE,

THE COMMONWEALTH CONTENDS THAT THE ONLY INTERESTS CONSIDERED AT

THE TIME OF SULLIVAN'S TRIAL WERE THOSE OF RELATOR HIMSELF,

SINCE 1942, THE UnrTED STATES SupREmME CouRT HAS RECOGNIZED

THAT A DEFENDANT IS “ENTITLED TO THE UNTRAMMELED AND UNIMPAIRED

ASSISTANCE OF COUNSEL FOR HIS DEFENSE.” GLASER v. Unitep STATES,

315 U.S, 69, 70 (1942); Unite States v. GeorGe Ripso, 470 F.2p

1099, 1192 (3rp Cir, 1973); GovERNMENT OF THE VIRGIN JSLANDS

v, Jou, 447 F.2p 69, 74 (3rp Cir. 1971); WALKER Vv. UNITED

STATES, 422 F.2p 374, 375 (3rp Cir.) CERT DENIED, 399 U.S, 915

7

ANSWER TQ PETITION FOR WRIT oF HABEAS CORPUS, PAGE 9, AND

APPELLEE S$ BRIEF, PAGE 39, IT SHOULD INITIALLY BE NOTED THAT

RESPONDENT IS REFERRING TO COUNSEL IN THE SINGULAR FORM, SEE FOR

EXAMPLE 1.D., AT VI A, (ESPECIALLY THE PHRASE "COUNSEL'S ADVICE”),

WHEREAS RELATOR USES COUNSEL IN THE PLURAL MEANING OF THE TERM,

43¢

(1979), “THE RIGHT TO COUNSEL GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS CONTEMPLATES THE SERVICE OF ANY ATTORNEY

DEVOTED SOLELY TO THE INTERESTS OF HIS CLIENT.” UNITED STATES

EX REL, HART v. DAVENPORT, 478 F.2p 203, 209 (3rp Cir. 1973)

(EMPHASIS ADDED.) WHERE COUNSEL I$ FOUND TO BE INEFFECTIVE, THE

VERDICT MUST BE SET ASIDE AND A NEW TRIAL GRANTED, GLASER V,

UNITED STATES, SUPRA. AT 76, THIS RIGHT TO UNIMPAIRED ASSISTANCE

APPLIES BOTH BEFORE TRIAL, IN CONSIDERING HOW TO PLEAD, AS WELL

AS DURING THE TRIAL ITSELF. UNITED STATES £X REL, HART Vv,

DAVENPORT, SUPRA. AT 209, THE RIGHT TO COUNSEL “REQUIRES NOTHING

LESS THAN THE UNDIVIDED LOYALTY OF COUNSEL IN BEHALF OF HIS

CLIENT.” UNITED STATES EX REL, Platts v. Myers, 253 F. Supp

23, 25 (E.D. Pa. 1966). No ONE CONTENDS HERE THAT RELATOR

INTELLIGENTLY, KNOWINGLY, AND COMPETENTLY WAIVED HIS CONSTITUTIONAL

RIGHT TO COUNSEL AS NECESSARY UNDER JOHNSON Vv. ZERBST, 304 U.S.

458 (1938) anp UNITED STATES EX REL, HART V. DAVENPORT, SUPRA, AT

211.

It IS BY UTILIZATION OF THIS BACKGROUND THAT WE MUST DECIDE

WHETHER THERE WAS DUAL REPRESENTATION, AND IF SO, WHETHER A

POSSIBILITY OF CONFLICT IN SUCH REPRESENTATION WAS EVIDENCED,

ON THE ISSUE OF DUAL REPRESENTATION, THE SuPREME CourT oF

PENNSYLVANIA, IN COMMONWEALTH V. SutLivaAN, 371 A.2p 468, HELD

THAT:

4c

"THE TESTIMONY ESTABLISHES THAT THERE

WAS NO DUAL REPRESENTATION IN THE TRUE

SENSE OF THE TERM, 1.£,., THE SAME COUNSEL

ACTIVELY REPRESENTED CO-DEFENDANTS, if

PERUTO TESTIFIED THAT IT WAS Mr, (NOW JUDGE)

D1BONA WHO SERVED AS CHIEF COUNSEL FOR

APPELLANT DURING TRIAL AND MADE ALL

DECISIONS RELEVANT TO SULLIVAN'S DEFENSE,

HILE HE, MR, PERUTO, WAS MERELY ASSISTING,

HESE FUNCTIONS WERE REVERSED at THE TRIAL

OF THE CO-DEFENDANTS WHERE Mr, PERUTO WAS

GHIEF GOUNSE}, AND Jupce D1iBonA THE ASSISTANT,

HUS, JUDGE DIBONA SERVED ONLY A MINOR ROLE

IN THE TRIAL OF THE CO-DEFENDANTS WHILE

DEVOTING HIS PRIMARY EFFORTS TO THE SULLIVAN

FARE. , HIS CONCLUSION IS SUPPORTED BY JUDGE

1BONA’S STATEMENTS THAT HIS STEWARDSHIP WAS

IN NO WAY AFFECTED BY HIS CONSIDERATION OF

THE CO-DEFENDANT S (SIC) CASES BUT WAS

SOLELY A PRODUCT OF WHAT HE CONSIDERED TO BE

HE BEST..COURSE IN HIS REPRESENTATION OF

SULLIVAN,

V F

EXISTED. .2D AT MPHASIS ADDED, )

THE SuPREME COURT BASED ITS DECISION ON THIS CRITICAL ISSUE

UPON THE TESTIMONY OF Mr, PERUTO, AT LEAST IN GREAT PART, AND THE

COMMONWEALTH USES THIS FINDING IN SUPPORT OF ITS ARGUMENT THAT

THERE WAS NO DUAL REPRESENTATION, ON THE OTHER HAND, THE COMMON-

WEALTH HAS VEHEMENTLY REQUESTED THAT WE DO NOT BELIEVE ANYTHING

THAT Mr, PERUTO SAYS,

"IN FACT, A REVIEW OF THE WHOLE RECORD SHOWS

THAT LITTLE OF Mr. PERUTO’S TESTIMONY IS

WORTHY OF BELIEF,..MR. PERUTO CONSISTENTLY

SHOWED A TOTAL DISREGARD FOR THE TRUTH AND

REPEATEDLY CONTRADICTED HJMSELF, OTHER

WITNESSES AND THE RECORD, 8

WE ARE THUS SQUARELY FACED WITH TWO DIVERGENT ARGUMENTS PUT

FORTH BY THE COMMONWEALTH:

Baie OF APPELLEE AT 43 N, ll,

45¢

1, IGNORE MR, PeRUTO’S TESTIMONY IN EVERY INSTANCE, BUT

2. ACCEPT THE STATEMENT ON WHICH THE PENNSYLVANIA SUPREME

CouRT BASED ITS CONCLUSION “THAT THERE i$ ABSOLUTELY NO EVIDENCE

THAT A CONFLICT EXISTED,”

THERE 1S SERIOUS DOUBT AS TO WHETHER THE SUPREME CoURT

REACHED THE CORRECT CONCLUSION ON THE ISSUE OF WHETHER THERE WAS

DUAL REPRESENTATION, ALTHOUGH THERE IS SOME FACTUAL BASIS FOR

THIS DECISION, IT AGAIN RESTS ON ONE OF MR, PERUTO’S STATEMENTS:

"Q, (MR, MorAN): 1p ALSO REPRESENTED THE

OTHER TWO DEFENDANTS DI PASQUALE AND ARCHIDI

IN THIS CASE; IS THAT CORRECT, SIR?

A. (Mr, Peruto): THE ORES Two | TRIED. |

COU SEL FoR fr, QULLIVAN, ca Pesca

T, Post- -CONVICTION, ban. 25, 1974, p. 90.)

MR, PERUTO’S RECOLLECTION OF HOW THE DEFENDANTS CHOSE

WHETHER HE OR JUDGE J)1BONA WOULD REPRESENT THEM INDIVIDUALLY WAS

BROUGHT OUT ON DIRECT EXAMINATION AT THE PosT-CoNnvICTION HEARING:

"ALTHOUGH IT APPEARS THAT I’M CO-COUNSEL IN

THE CASE OF JOHN SULLIVAN, SUCH WAS_NOT

COMPLETELY THE CORRECT STATEMENT, THE THREE

DEFENDANTS WERE TOGETHER IN THE CELL ROOM

WHEN WE WERE READY TO GO TO TRIAL, AND THE

THREE OF THEM WERE TOLD NOW THIS IS THE

SITUATION, ONE OF US WILL BE PERMITTED

TO DO THE CROSS-EXAMINATION AND THE

SUMMATIONS AND THE ACTUAL HANDLING OF THE

CASE, You’RE GOING TO HAVE TO CHOOSE

BETWEEN US OR ANY OTHER LAWYER OF YOUR

CHOICE. ULLIVAN INDICATED THE DESIRE

THAT JUDGE DIBONA WAS OLDER AND MORE

RXpERIENCED AND HE ELECTED TO HAVE JUDGE

IBONA TRY HIS CASE, IHE OTHER TWO

DEFENDANTS ELECTED TO HAVE ME TRY THEIR

CASE, JUDGE ONA AND | THEN AGREED THAT

WHICHEVER OF US WOULD & SELECTED TO TRY

THE. CASE THE OTHER OF US WOULD ASSIST,

BUT NOT IN THE SENSE OF BEING COEQUAL BUT

MERELY TO ASSIST SUCH AS YOU KNOW, GET

PAPERS READY 1998. SOMETH NG LIKE THAT,

(Aprit 25, 19 08-09, )

— 4BC

HOWEVER, BOTH MR, Peruto AND JupGe DiBona ENTERED APPEAR-

ANCES FOR RELATOR AT HIS TRIAL, AND THERE WAS NO DESIGNATION

ON THAT RECORD THAT ONE OF THEM WAS CHIEF COUNSEL AND THE OTHER

HIS ASSISTANT, THERE IS NO DOUBT THAT BOTH ATTORNEYS WERE

ACTIVE DURING THE COURSE OF RELATOR’S TRIAL, ALTHOUGH JUDGE

DIBONA WAS THE MAJOR ONE OF THE PAIR WHO ARGUED TO THE JURY,

THERE ARE NUMEROUS INSTANCES WHEN Mr, PERUTO PRESENTED ARGUMENTS

TO THE COURT,

ON THE ADMISSIBILITY OF COMMONWEALTH’S EXHIBITS AT THE CLOSE

OF ITS CASE, MR, ERUTO WAS OFTEN THE ONLY ONE DECIDING WHETHER

OR NOT TO OBUEET. AND HE ALONE MOVED FOR THE DIRECTED VERDICT

OF ACQUITTAL, PERHAPS, MOST SIGNIFICANT IS THE FACT THAT

MR. PERUTO ALONE MADE THE ARGUMENT TO THE JURY ON WHETHER THE

Tuese CAN BE FOUND IN THE TRIAL RECORDS AT:

o3 121-25, 149-57

ie

fh "0, 1064-66, 1072-81

3d- 13 a 30, 1247-67, 1278-80

0

EE FOR EXAMPLE PAGES 1074-1079,

]

ACT, TRIAL, June 16, 1967, p, 1130,

47C

12

SENTENCE IMPOSED SHOULD BE LIFE IMPRISONMENT OR DEATH,

MR, PERUTO PRESENTED ORAL ARGUMENT TO THE COURT ON NEARLY EVERY

ISSUE THAT JUDGE DIBONA DID, WITH THE EXCEPTION OF THE ARGUMENT

TO THE JURY ON THE SIGNIFICANT ISSUE OF WHAT SENTENCE WOULD BE

IMPOSED, WHERE THE ARGUMENT WAS MADE SOLELY BY MR, PeruTo,

ALTHOUGH MR, PERUTO TESTIFIED THAT HIS ROLE WAS NOT THAT OF A

COEQUAL TO JUDGE D1BONA, BUT RATHER WAS LIMITED TO “GET(TING)

PAPERS READY OR SOMETHING LIKE THAT”, (N.1T, PosTt-ConvicTION,

Apri 25, 1974, p, 109) THE AFOREMENTIONED PARTICIPATION STRONGLY

REFUTES PERUTO’S RECOLLECTION ON THIS MATTER,

FURTHER, THERE IS OTHER TESTIMONY WHICH REFUTES THE STATE

COURT’S CONCLUSION THAT THERE WAS NO DUAL REPRESENTATION BY

MR, PERUTO AND JuDGE D1BONA WITH RESPECT TO THE THREE DEFENDANTS,

SHOWING INSTEAD THAT JUDGE DIBONA ALONE WAS CHIEF COUNSEL FOR

SULLIVAN, WHILE MR, PERUTO SERVED IN THE SAME ROLE FOR RELATOR’S

CO-DEFENDANTS. FOR EXAMPLE, THE RECORD OF THE PRE-TRIAL CONFERENCES

REVEALS THAT JUDGE D1IBONA REPRESENTED CARCHIDI. CONTRAST WITH

THIS, MR, PERUTO’S STATEMENT: “I INSIST ON BEHALF OF MY OTHER

CLIENT DiPASQUALE AND THE MAN THAT J NOW REPRESENT TOGETHER WITH

Jupce (sic) DiBona, Ma, Suitivan...” (N.T, Triac, May 11, 1967,

Pp, 3), Even JupcGe Doty, IN HIS OPINION AFTER THE Post-ConvICTION

HEARING, SAID: “A, CHARLES PERUTO, DEFENDANT’S CO-COUNSEL...”

(NovemBer 6, 1974, at ep, 3,) (EMPHASIS ADDED.)

XT, Triac, June 19, 1967, p, 1247-1264,

3

PPELLEE RIEF, AT 43 nN, 1], AppDITIONALLY, JuDGE D1IBoNnA REFERRED

TO GREGORY CARCHIDI as HIS OTHER CLIENT i SHE BEGINNING OF

THE TRIAL ITSELF. (N.T. TRIAL, May Ll, 1967, Pp, 3,)

480

MOREOVER, ACCORDING TO MR. PEeRuTo, HE MADE THE DECISION

THAT THE DEFENSE SHOULD NOT PRODUCE ANY EVIDENCE, CONSIDER THE

FOLLOWING EXCHANGE ON DIRECT EXAMINATION:

"Q, WAIT JUST A MINUTE, SIR, YOU WERE

CONCERNED WITH THE OTHER TWO DEFENDANTS

YOU REPRESENTED; IS THAT CORRECT:

A, (By Mr, Peruto). Yes, WHY EXPosE

YOUR DEFENSE IF YOU HAVE GOT TWO MORE

PEOPLE TO COME TO TRIAL AND THE COMMON-

WEALTH HAS NOT PRESENTED A CASE?

Q, SO THAT ENTERED INTO YOUR CONSIDERATION

AS TO WHETHER OR NOT_YQU PRESENTED A DEFENSE

IN THE SULLIVAN CASE?

CH RSS TER REA oe EB Dw. 107.)

FURTHER, AT TRIAL, MR, PERUTO STATED THAT “MR, Di BONA HAS

ENTRUSTED THE DEFENSE TO ME AND THE DEFENSE RESTS,” (EMPHASIS

ADDED.) (N,T, TRIAL, June 16, 1967, Pp, 1128.) Hap Jupce DiBona

NOT SO ENTRUSTED THE DEFENSE, SURELY HE WOULD HAVE SAID SO AT

THAT POINT, SEE ALSO MR, PERUTO’S DISCUSSION WITH SULLIVAN AS

RECREATED BY RELATOR AT NOTES OF TESTIMONY Post-ConvICcTION,

MARCH 25, 1974, p, 156-60,

THE FACTS ESTABLISHED ON THE RECORD SHOW A PREPONDERANCE OF

TESTIMONY WHICH LEADS ONE TO CONCLUDE THAT THE STATE COURT'S

CONCLUSION IS NOT SUPPORTED BY CREDIBLE EVIDENCE, 28 U.S.C,

§2254(D)(8) PROVIDES IN PART THAT IN HABEAS PROCEEDINGS,

DETERMINATIONS OF FACTUAL ISSUES ARE PRESUMED CORRECT UNLESS THE

FEDERAL COURT, CONSIDERING THE RECORD AS A WHOLE, CONCLUDES THAT

SUCH FACTUAL DETERMINATION IS NOT FAIRLY SUPPORTED BY THE RECORD.

49C

OuR INDIVIDUAL DETERMINATION “IS IN NO WAY FORECLOSED,.,BY THE

FACT THAT THE STATE TRIAL JUDGE OR THE JURY MAY HAVE REACHED A

DIFFERENT RESULT ON THIS ISSUE,” HAYNES V. WASHINGTON, 373 U.S,

503, 515 (1963), BECAUSE AS A FEDERAL COURT, WE ARE UNDER A DUTY

TO “MAKE AN INDEPENDENT EXAMINATION OF THE RECORD TO DETERMINE

WHETHER THOSE (STATE COURT) CONCLUSIONS ARE SUPPORTED BY THE

EVIDENCE.” Dopce v. Jounson, 471 F.2p 1249, 1250 (6TH Cir.)

CERT DENIED, 412 U.S, 931 (1973).

IN ADDITION TO THE STATE COURT'S FACTUAL CONCLUSION THAT

THERE WAS NO DUAL REPRESENTATION, A LEGAL DETERMINATION THAT

NO CONFLICT EXISTED WAS MADE BY THE COURT, YET,

"ALTHOUGH THE DISTRICT JUDGE MAY WHERE

THE STATE COURT HAS RELIABLY FOUND THE |

RELEVANT FACTS, DEFER TO THE STATE COURT'S

FINDINGS OF FACT, HE MAY NOT DEFER TO HIS

FINDINGS OF LAW, IT IS THE DISTRICT

JUDGE’S DUTY TO APPLY FEDERAL LAW TO THE

TATE COURT FACT FINDINGS INDEPENDENTLY,

HE STATE CONCLUSIONS OF LAW MAY NOT BE

GOWNSEND Vv. SAIN, S72 U,e. 003, 312 (1963).

BECAUSE OF THE OVERWHELMING EVIDENCE, REFUTING THE SUPREME

CourT’S FACTUAL CONCLUSION THAT Mr, PERUTO WAS MERELY AN ASSISTANT

AT SULLIVAN'S TRIAL, WE FIND THAT SUCH DETERMINATION IS NOT

FAIRLY SUPPORTED BY THE RECORD AS A WHOLE, AND THE CourT’s

LEGAL CONCLUSION THAT THERE WAS NO DUAL REPRESENTATION NEED NOT

BE ACCEPTED BY US, UNDER THE GOVERNING STANDARDS OF TOWNSEND.

YET, DUAL REPRESENTATION OF CRIMINAL DEFENDANTS TRIED

TOGETHER 1S NOT NECESSARILY A DEPRIVATION OF THEIR SIXTH AMEND-

MENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL. UNITED STATES

50C

EX REL, SMALL Vv. RunpLE, 442 F,2p 235, 237 (3rp Cir. 1971);

WALKER V. UNITED STATES, SUPRA. AT 375; UNITED STATES EX REL.

SMITH Vv. State, 341 F, Supp, 268, 271 (D.C, N.J, 1972); Unitep

STATES EX REL, Paris Vv. BRIERLEY, 315 F, Supp, 1392, 1395 (W,D,

Pa, 1970), “WHETHER OR NOT ACTUAL PREJUDICE EXISTED, IT IS

SUFFICIENT TO CONSTITUTE A VIOLATION OF THE RELATOR’S CONSTITU-

TIONAL RIGHTS IF THE LAWYER IS SERVING CONFLICTING INTERESTS,”

UNITED STATES EX REL, PLATTS v. MYERS, SUPRA AT 25, SEE ALSO

UNITED STATES EX REL, MARTINAS V. BRIERLEY, 273 F, Supp. 260, 26]

(E.D, Pa, 1967),

“THERE MUST BE A SHOWING OF POSSIBLE CONFLICT OF INTEREST

OR PREJUDICE, HOWEVER REMOTE, BEFORE A REVIEWING COURT WILL FIND

DUAL REPRESENTATION CONSTITUTIONALLY DEFECTIVE.” UNITED STATES

EX REL, HorTA v. DeYounc, 523 F.2p 807, 808-09 (3rp Cir, 1975);

T v, DAvVENPoRT, 478 F.2p 203, 210 (3rp

Cir, 1973), THIS “POSSIBLE CONFLICT” TEST IS USED BECAUSE

"THE RIGHT TO HAVE ASSISTANCE OF COUNSEL IS TOO FUNDAMENTAL AND

ABSOLUTE TO ALLOW COURTS TO INDULGE IN NICE CALCULATIONS AS TO

THE AMOUNT OF PREJUDICE ARISING FROM ITS DENIAL.” UNITED STATES

7 :

See aso linizep Srazes "sn as gig 1) a5 11h Nii ree

S

V wai SNES ‘su RA. AT 7 NITED SIATES, ; a

AT_3/5; | UPP ¥ (70 {E b

t ‘ Ne , TATES EX REL ve, 2 a SuBB ran ry

3d, Abe pat ek

51C

EX REL, YorTA v. DEYouNG, SUPRA. AT 809, QuoTING GLASER Vv.

UNITED STATES, SUPRA, AT 76, (EMPHASIS ADDED. )

To SEE WHETHER THERE WAS A “SHOWING OF POSSIBLE CONFLICT”,

THE COURT SHOULD LOOK AT THE RECORD AND ASK “WHETHER OR NOT

SEPARATE REPRESENTATION MIGHT HAVE MADE A DIFFERENCE IN

PETITIONER'S CHOICE OF DEFENSE STRATEGY THAT MIGHT HAVE

DIFFERENTIATED (DEFENDANT'S) POSITION FROM THAT OF (HIS) CO-

DEFENDANT.” UNITED STATES EX REL, MORGAN Vv. KEVE, SUPRA, AT

589; UNITED STATES £X REL, HoRTA v. DEYOUNG. SUPRA, AT 809,

THE TRIAL DEFENSE SHOULD BE EXAMINED AND ANY PLACES WHERE

SEPARATE COUNSEL, WITHOUT POSSIBLE CONFLICTING DUTIES, COULD

HAVE TAKEN MORE SUCCESSFUL “TACK” THAN WAS TAKEN BY JOINT

COUNSEL SHOULD BE IDENTIFIED. UNITED STATES EX REL, MORGAN V,

Keve, 1p. See ALso UNITED STATES Ex REL, HoRTA v. DEYounG,

SUPRA. AT 899, ANY CLAIMS OF CONFLICT OF INTEREST MUST BE

BASED ON SOME FORM OF FACTUAL SUPPORT. BOEHMER V, UNITED STATES,

SUPRA. AT 779, BECAUSE THE RESOLUTION WHETHER A CONFLICT OF

ei TEST FOR POSSIBLE CONFLICTS OF INTEREST MUST BE MADE IN LIGHT

OF THE NORMAL COMPETENCY STANDARD FOR ADEQUATE REPR Poe.

UNITED STATES EX REL, RT V, abba 4]

mie

a

: a2 dp 7 O37 ts Ue Rize:

ny Roti THE STATE AND FEDERAL STANDARDS FOR THE

REQUIREMENT OF NORMAL COMPETENCY ARE THE SAME, AND THE ULTIMATE

ISSUE 1S NOT WHETHER A DEFENDANT WAS , PREJUDICED BY ce COUNSELS

ACT OR OMISSION, BUT oe COUNSEL’S PERFORMAN was ou 7” LEVEL

of NORA QURETENGY . MOORE V. p 730

(3RD 153)" hy EE ALSO

a ‘AT . NORMAL COMPETENCY INCLUDES SUCH ADHERENCE TO

ETHICAL Re WITH RESPECT TO AVOIDANCE OF CONFLICTING

INTERESTS AS IS GENERALLY RPSCTED | sy ; ay Ry UNITED STATES

£2 3B. inet Vv, » SUPRA, NCLUDING eae

TO CANON 5, SUPRA, AT L177,

, 1970);

52C

INTEREST, OR A POSSIBILITY OF THE SAME, WAS EVIDENCED VIA THE

EVEN PARTIAL DUALITY IS DEPENDENT ON THE CIRCUMSTANCES AS A

WHOLE, IT IS NECESSARY THAT THE TRIAL AND POST-CONVICTION HEARING

RECORDS BE EXAMINED FULLY, INCLUDING ANY STATEMENTS MADE DURING

THESE PROCEEDINGS BY EITHER JUDGE DIBoNnA or Mr. PeRuTo,

RELATOR’S ALLEGATIONS OF INEFFECTIVENESS OF COUNSEL CENTER

ON COUNSELS’ REFUSAL TO PERMIT RELATOR TO TESTIFY ON HIS OWN

BEHALF AND ON THEIR DECISION NOT TO PRESENT ANY EVIDENCE AND THUS

WE MUST LOOK FIRST TO THE RECORDS TO DETERMINE WHETHER THEY OFFER

FACTUAL SUPPORT FOR SUCH CONTENTIONS, THERE ARE NUMEROUS

INSTANCES OF SUCH A POSSIBILITY OF CONFLICT EVIDENCED HERE,

WHETHER THE DECISION FOR RELATOR NOT TO TESTIFY MAY HAVE NOT

BEEN TRULY HIS OWN, BUT RATHER MADE BY THE TWO ATTORNEYS, FOR

EXAMPLE, SULLIVAN CONTENDS THAT HE WANTED TO TESTIFY AND THAT HE

COMMUNICATED THIS TO HIS ATTORNEYS. (N.7, Post-ConvictTion,

MARCH 25, 1974, Pp, 155), CARCHIDI SUPPORTS SULLIVAN’S MEMORY

ON THIS POINT. (H.T,. Post-Conviction, Aucust 6, 1974, p, 82 )

ADDITIONALLY, ON SULLIVAN’S CROSS-EXAMINATION, THE FOLLOWING

EXCHANGE TOOK PLACE:

"Q, NOW YOU INDICATE THAT YOU WANTED TO

TESTIFY,

A, YES, SIR,

Q. AND WHO MADE THE FINAL ma ie WHICH OF

THE Me i OF you? (SuLLIVAN, MR. PERUTO, OR

JuDG ONA),

4K, ] HAD NOTHING TO DO WITH THE DECISION,

T .WAS GIVEN TO ME POINT BLANK, AND

R, PERUTO, 4h LIKE | SAY HOURS OF

DISCUSSION, ERUTO SAID SOMETHING TO

THE EFFECT oF, OOK, WE'RE THE ATTORNEYS,

53C

You DON’T KNOW ANYTHING ABOUT LAW’-- |‘™

NOT QUOTING HIM VERBATIM, I'M USING MY OWN

LANGUAGE -- AND YOUR LIFE IS IN MY HANDS AND

WE'RE OUT TO PROTECT IT, AND YOU'RE NOT TO

WORRY, THAT YOU'LL BE ACQUITTED AND WE RE

ASSURED THAT YOU LL BE ACQUITTED. AND | SAID, |

p

(HOP post-Lonvictions. Rann a5. T8pyc Re 286, 5

Mr, PERUTO’S RECOLLECTION OF HOW THE DECISION WAS MADE

FOR RELATOR NOT TO TESTIFY WAS BROUGHT OUT ON HIS DIRECT

EXAMINATION:

"Q. ett, I] WANT TO KNOW IF IT WAS YOU WHO

URGED HIM NOT TO TESTIFY,

MR. LUNKENHEIMER: IF ANYONE,

Mr, MORAN: IF ANYONE, NATURALLY,

THE Witness: Since | DON’T RECALL, I'LL

PUT IT THIS WAY: WHICH OF THE TWO OF US URGED

HIM TO TESTIFY OR DID NOT, OR WHETHER | DID IT

AS A RESULT OF BEING SORT OF A DEVIL'S ADVOCATE

omg REPRESENT HIM REGULARLY, supe >- ] WOULD

SAY THAT WOULD AccePT JupGE DiBona’s

N

RECOLLECTION, D IT DOES SEEM TO MY

RECOLLECTION MORE IN KEEPING WITH WHAT |

WOULD HAVE DONE

Conviction, APRIL 25, 1974, RUT ag

(EMPHASIS ADDED.

ALTHOUGH JUDGE D1BONA ACKNOWLEDGES THAT SHORTLY AFTER

Mr, PERUTO URGED RELATOR NOT TO TESTIFY THAT SULLIVAN MADE THE

DECISION NOT TO DO so. (N.7T. Post-Conviction, May 15, 1974,

P, 16), HE CLAIMS THAT HE FELT THAT SULLIVAN SHOULD TESTIFY

AND THAT RELATOR WAS THE ONE WHO HIMSELF MADE THE OPPOSITE

DECISION. (N.7T. Post-Conviction, Aprit 25, 1974, p, 19-20), On

THE BASIS OF THESE DISPUTED FACTS, THE SUPREME CoURT HELD THAT

MR. DIBonA’S DECISIONS ON NOT ALLOWING RELATOR TO TESTIFY ON HIS

OWN BEHALF WERE TACTICAL ONLY. 3/71 A.2pD at 487,

54C

IN HIS OPINION, AFTER THE Post-CoNvICTION HEARING, JUDGE

Doty FOUND AT PAGE 8 THAT:

"“Jupce DiBoNA TESTIFIED THAT THE DEFENDANT

WAS FULLY CONSULTED CONCERNING HIS RIGHT

TO TESTIFY AND THAT THE DECISION OF DEFENDANT

NOT TO TESTIFY WAS MADE JOINTLY BY COUNSEL

AND THE CLIENT. WE SEE NO QUESTION OF |,

INEFFECTIVE ASSISTANCE OF COUNSEL HERE,

AGAIN, FEDERAL COURTS ARE NOT BOUND BY SUCH CONCLUSIONS UNLESS

SUPPORTED FACTUALLY ON THE RECORD, AND THERE HAS BEEN AMPLE

TESTIMONY HERETOFORE TO SHOW THAT JUDGE DoTY DID NOT CONSIDER

ALL OF THE EVIDENCE PRESENTED FROM THE POST-CONVICTION RECORD

FULLY ENOUGH TO ADEQUATELY SUPPORT HIS FINDING ON THIS ISSUE,

THEREFORE, THE DECISION WHETHER OR NOT SULLIVAN SHOULD

TESTIFY ON HIS OWN BEHALF MAY NOT HAVE BEEN MADE SOLELY BY

HIM, RATHER, THERE IS A PREPONDERANCE OF EVIDENCE TO SUPPORT

THE INFERENCE THAT THE TWO ATTORNEYS, EITHER SINGULARLY OR IN

CONSORT, AT THE VERY LEAST INFLUENCED RELATOR’S CHOICE, IF

THEY DID NOT ACTUALLY MAKE SUCH DECISION ON THEIR OWN, BECAUSE

THERE IS AT LEAST A POSSIBILITY THAT EITHER MR, PERUTO OR

Jupce D1BoNA WERE BURDENED BY A CONFLICT OF INTEREST AT THE

TIME SUCH DECISION WAS MADE, INEFFECTIVE ASSISTANCE OF COUNSEL

HAS BEEN DEMONSTRATED,

ON THE ISSUE OF WHETHER COUNSELS’ DECISION NOT TO PRESENT

ANY EVIDENCE WAS BURDENED WITH A POSSIBILITY OF CONFLICT, RELATOR

ALLEGES THAT HAD COUNSELS’ DECISIONS BEEN BASED ON AN UNFETTERED

AND UNDIVIDED ASSESSMENT OF HIS BEST INTERESTS, SEVERAL PIECES

55C 56C

OF EVIDENCE MIGHT HAVE BEEN BROUGHT FORTH AT TRIAL, HE CONTENDS ° I hg og i cae ot Mg SIR,

THAT THEIR DECISION WAS BASED ON THE CONSIDERATION NOT TO REVEAL CONVICTED AND, THEREFORE, WHAT S THE SENSE IN

EXPOSING THE DEFENSE BECAUSE WE HAD TWO MORE

THE DEFENSE STRATEGY TO BE USED IN THE TRIAL OF HIS CO-DEFENDANTS, DEFENDANTS TO TRY.

THe Supreme Court FounpD JupGe DiBoNA'S DECISION ON THIS ISSUE BY MR. MORAN:

AGAIN TO BE TACTICAL ONLY, AND NOT THE RESULT OF ANY DUAL e Q. WAIT --

REPRESENTATION: A, Anp_]'m AFRALD SULLIVAN SUFFERED BY THAT FACT.

“IN THE INSTANT CASE, JUDGE DIBOoNA BELIEVED Q. WAIT JUST A MINUTE, SIR, YOU WERE CONCERNED

THAT THERE WAS INSUFFICIENT EVIDENCE UPON WITH THE OTHER TWO DEFENDANTS YOU REPRESENTED:

WHICH TO CONVICT SULLIVAN, E THEREFORE 1S THAT CORRECT ‘

REFRAINED FROM CALLING ANY DEFENSE P

WITNESSES TO AVOID THE POSSIBILITY OF * Ac.. YER. 2

EXPOS'NG THEM TO CROSS-EXAMINATION THROUGH IWO MORE PEOPLE TO COME

WHICH THE PROSECUTION MIGHT HAVE EXTRACTED | WEALTH HAS NOT PRESENTED A CASE:

THOSE ELEMENTS NECESSARY TO COMPLETE THEIR é

PROOF,.,..1N VIEW OF THE CLOSE QUESTION OF Q. So THAT ENTERED INTO YOUR CONSIDERATION AS TO

THE SUFFICIENCY OF THE EVIDENCE ON THIS WHETHER OR NOT YOU PRESENTED A DEFENSE IN THE

RECORD we FIND THAT THE COURSE CHOSEN BY ’ SULLIVAN CASE‘

GE D1BONA CQULD NOT BE TERMED UNREASONABLE,

34) 5 AT 489" A, Sure, IT_DID. WHEN WF RE TALKING ABOUT pac

> AND FORTH. FOR EXAMPLE, |’VE HEARD JuDGE DIBoNA

THE MOST CONCRETE TESTIMONY INDICATING THAT SUCH FACTUAL TESTIFY TODAY, AND, YES, WE WERE SORT OF PLAYING

DEVIL’S ADVOCATE. | DIDN’T WANT THE DEFENSE TO

DETERMINATION IS UNSUPPORTED BY THE RECORD IS EVIDENCED BY GO ON BECAUSE 1 THOUGHT WE WOULD ONLY BE EXPOSING

THE DEFENDANT WITNESSES FOR THE OTHER TWO TRIALS

MR, PeruTo’s TESTIMONY WHEN HE SAID: THAT WERE COMING UP, OW ON THE OTHER HAND, YOU

SEE, THE THREE DEFENDANTS HAD ALREADY DECIDED

"Q, WELL, AT ANY RATE YOU HAD MADE A BETWEEN THEMSELVES iu St OF US THEY — ig BE

DECISION NOT TO PRESENT ANY TESTIMONY CHIEF COUNSEL, OHN SULLIVAN PICKED FRED D1Bona,

ANYWAY, HADN'T YOU! HE OTHER TWO DEFENDANTS PICKED ME. SO CERTAINLY

HAD TO BE CHIEF COUNSEL AND FACE THE TRIAL OF

A, IN THE SULLIVAN TRIAL? THE OTHER TWO MEN, AND AS | LOOK BACK ON _THAT,

ALTHOUGH IT WAS NOT MY THOUGHT THAT JOHN SULLIVAN

Q. THe SULLIVAN CASE, YES, SHOULD BE SHORT-CHANGED IN ANY FASHION, |'M AFRAID

THAT IT WAS MY THOUGHT THAT | WAS OVER-SOLICITOUS

A, Yes. I CAN RECALL THE GREAT DISCUSSIONS FOR THE OTHER THO DEFENDANTS BEING READY " i

THAT WE HAD WITH SULLIVAN WHERE WE WERE SO + TRIFR. (N.1, Post-Conviction, Aprit 24, 19/4,

CONVINCED THAT -- AND WE COMMUNICATED THIS P 109-102.) (EMPHASIS ADDED. )

TO SULLIVAN --

THe Court: WHEN You SAY GREAT DISCUSSION,

YOU MEAN LENGTHY DISCUSSION?

ADDITIONALLY, RELATOR POINTS TO SEVERAL PIECES OF EVIDENCE

WHICH MAY HAVE BEEN ADDUCED AT TRIAL HAD COUNSELS’ LOYALTIES

BEEN UNDIVDED. FIRST, MICHAEL HESSION COULD ALLEGEDLY HAVE

58C

Ps "PERUTO: You PUT ME IN THIS POSITION; A

STATEMENT BY CARCHIDI OFFERED INTO EVIDENCE

AND CAN ONLY BE REFUTED BY CARCHIDI!,

57C

TESTIFIED AT THE TRIAL TO CONTRADICT THE COMMONWEALTH’S MAJOR

WITNESS, FRANCIS MCGRATH, AS MR, HESSION DID AT THE TRIALS OF

' THE COURT: IT IS THE LAW BECAUSE A.

RELATOR’S CO-DEFENDANTS. JUDGE DIBONA CONTENDS THAT HESSION DEFENDANT REFUSES TO TESTIFY HE CAN’T

OFFER SOMETHING,

WOULD NOT TESTIFY FOR SULLIVAN BECAUSE OF THE POWER PLAY IN THE

UNION HIERARCHY. (N.T. Post-Conviction, Apric 25, 1974, p, 99-100.) © San te entity Te et CARCHIDI SAID AND

m YOU_CAN’T PUT CARCHID! THE RECORD,”

Jupce D1BoNnA KNEW OF HESSIAN AND HE STATED THAT “WE DISCUSSED (NT. Ry JUNE is 1967. P, B59RD

WITH Mr, HESSIAN AT THAT TIME, MR, PERUTO AND J DID, DURING THE In JupGe DiBoNA’S OPENING STATEMENT, HE TOLD THE JURY THAT

COURSE OF THE TRIAL HIS BEING A WITNESS, WE CONCLUDED THAT HE HE WOULD SHOW THAT MCGRATH (ONE OF THE COMMONWEALTH’S WITNESSES)

WOULD BE OF NO VALUE TO US AS A WITNESS...AND BASED ON THAT WE WAS MISTAKEN, AND BY IMPLICATION THE ONLY WAY HE COULD DO SO WAS

MADE A TACTICAL DECISION THAT THERE'D BE NO SENSE CALLING HIM,” BY CALLING OTHER WITNESSES TO REFUTE McGRATH. (SEE N.T. TRIAL,

(N.T. Post-Conviction, Aprit 25, 1974, Pp, 20-21.) (EMPHASIS ADDED. ) P, 90-91,) RELATOR ALLEGES THAT HE WANTED COUNSEL TO CALL THESE

AGAIN WE ARE CONFRONTED WITH THE FACT THAT JuDGE D1BoNaA’S ANALYSIS OTHER WITNESSES, AND THAT HE REQUESTED THAT COUNSEL DO SO, TO NO

OF THE ISSUES WAS NOT HIS SOLE CRITERION ON WHICH HE BASED HIS e AVAIL, (N,T. Post-Conviction, Marcu 25, 1974, p, 155-164, )

TACTICAL DECISIONS: Mr, PERUTO’S IDEAS CERTAINLY APPEAR TO RELATOR’S RECOLLECTION OF THIS CONVERSATION IS SUPPORTED

HAVE CARRIED SOME WEIGHT, IF NOT EQUAL WEIGHT, IN JUDGE D1Bona’s BY Mr, PeERuTO’S OWN TESTIMONY ON DIRECT EXAMINATION:

FINAL DECISION, Yet JuDGE DiBONA SAYS IT WAS HE WHO MADE THE "Q, Dip you ADVISE THE DEFENDANT SULLIVAN WHEN

e YOU WERE CONSIDERING WHETHER OR NOT TO PUT ON

A DEFENSE THAT THESE THREE WITNESSES WERE

AVAILABLE AND COULD HELP THIS DEFENSE?

FINAL DECISION ON THIS ISSUE. (N.T. Post-Conviction, Aprit 24,

1974, pe, 108.) ;

A, | DON'T RECALL ADVISING HIM OF THAT, BUT

GREGORY CARCHIDI WAS WILLING TO TESTIFY FOR SULLIVAN TO ] DO RECALL THAT FELT THAT IT MIGHT BE

DANGEROUS BECAUSE ONE OF THE OTHER TWO

CONTRADICT SOME OF McGRATH’S STATEMENTS. (N.T. Post-ConvicTION, DEFENDANTS LEAVING IN A HURRY MIGHT HAVE

BEEN SEEN BY THOSE THREE WITNESSES AND IT

AucusT 6, 1974, Pp 8,) THus, COUNSEL FOR RELATOR WAS FACED WITH e MIGHT HAVE DAMAGED THAT DEFENDANT AND IT

MIGHT HAVE COME OUT ON THE CROSS~EXAMINATION

DECIDING WHETHER TO USE CARCHIDI AS A WITNESS, EVEN THOUGH OF THOSE WITNESSES IN SULLIVAN'S CASE,

COUNSEL SIMULTANEOUSLY REPRESENTED CARCHIDI. AT LEAST PERUTO Q, (sic) YES, SIR. AND THERE A MATTER OF

JUDGMENT IN THE SENSE THAT WE FELT THAT THE

HAD ALREADY DECIDED NOT TO PUT CARCHIDI ON THE WITNESS STAND, AS ONLY THING THAT THEY HAD WAS THE MERE STATEMENT

OF MCGRATH AND THAT THE CASE WOULD NOT EVEN GO

EVIDENCED BY THIS DISCUSSION AT TRIAL: . TO THE JURY,” (EMPHASIS ADDED,

59C

MOREOVER, THE BRIEF FOR APPELLANT AT 44 anD Mr, PERuTO’S

TESTIMONY AT THE PosT-ConvICTION HEARING, APRIL 25, 1974, aT P.

107, LEND SUPPORT TO RELATOR’S ALLEGATION THAT ANOTHER WITNESS

WAS AVAILABLE TO REFUTE THE COMMONWEALTH’S EVIDENCE. RELATOR

WAS NEVER MADE AWARE OF MANY FACTORS WHICH COULD HAVE BEEN

USED AS A DEFENSE (N.T, Post-Conviction, Apric 25, 1974, Pp, 104-

107), WHICH HE DISCOVERED AFTER THE TRIAL WAS ENDED, (N.T, PosT-

Conviction, Aprit 25, 1967, Pp. 165-167.)

Jupce DiBona’s REASON FOR NOT CALLING ANY OF THE ABOVE

WITNESSES WAS THAT ONCE SULLIVAN HAD DECIDED NOT TO TESTIFY,

"THERE WAS NO OTHER REAL GOOD EVIDENCE THAT WE HAD, THAT |

THOUGHT SHOULD BE OFFERED.” (N,1T. Post-Conviction, APRIL 25,

1974, p, 19-20.) THERE 1S THE POSSIBILITY THAT Mr, PeRuTO’S

DECISION OR ADVICE ON THIS MATTER MAY HAVE INFLUENCED JUDGE

D:RBONA, BECAUSE IN FACT NONE OF THE WITNESSES WHO (SIC) RELATOR

WANTED WERE EVER CALLED. IT IS MOST APPARENT FROM THE TESTIMONY

QUOTED ABOVE THAT AT LEAST Mr, PERUTO HAD DIVIDED LOYALTY BETWEEN

RELATOR AND THE TWO CO-DEFENDANTS WHOM Mr, PERUTO ALLEGEDLY

REPRESENTED AS LEAD COUNSEL.

WE ARE THUS OBLIGED TO SPECULATE WHETHER OR NOT INDEPENDENT

COUNSEL WOULD HAVE PERMITTED THESE WITNESSES, SEVERAL OF WHOM

ARE SINCE DECEASED, TO TESTIFY IN BEHALF OF RELATOR, ALTHOUGH

THIS IS NOT ANY EASY SPECULATION, IT IS APPARENT THAT THE FINAL

DECISION ON THESE MATTERS WAS NOT ENTIRELY THAT OF JuDGE D1Bona,

6NC

BUT RATHER WAS MADE AT LEAST IN PART BY MR, PERuTO, IT SHOULD

BE NOTED THAT AT THE CONCLUSION OF THE COMMONWEALTH’S CASE,

Mr, PERUTO STATED: “MR, DIBONA HAS ENTRUSTED THE DEFENSE TO ME

AND THE DEFENSE RESTS.” (N.7. TRIAL, June 16, 1967, Pp, 1128.)

(EMPHASIS ADDED.) ALTHOUGH WE ARE UNSURE OF WHO CARCHIDI’S

"MAIN” COUNSEL WAS, EVERYONE AGREES THAT MR, PERUTO FUNCTIONED

AS THE PRINCIPAL COUNSEL FOR DIPASQUALE.

Mr, PERUTO’S CONCERN FOR HIS OTHER CLIENTS, COMBINED WITH

HIS ACTIVE PARTICIPATION THROUGHOUT THE COURSE OF RELATOR’ S

TRIAL AND THE ENTRUSTING TO HIM OF RELATOR’S DEFENSE, LEAVES ME

NO CHOICE BUT TO CONCLUDE THAT THERE WAS AT LEAST A POSSIBILITY

OF CONFLICT OF INTEREST IN THE DUAL REPRESENTATION, RELATOR’S

CONVICTION UNDER THESE CIRCUMSTANCES CARRIES WITH IT SUCH A

POTENTIAL FOR INVASION OF CONSTITUTIONAL RIGHTS THAT (SIC)

SHOULD BE VACATED,

THE COURT IS NOT UNMINDFUL THAT UNDER OUR SYSTEM, THE

ADMINISTRATION. OF CRIMINAL JUSTICE IS GENERALLY COMMITTED TO

THE SEVERAL STATES; THAT DUE PROCESS OF _AW “IS NOT TO BE TURNED

INTO A DESTRUCTIVE DOGMA AGAINST THE STATES IN THE ADMINISTRATION

OF THE SYSTEMS OF CRIMINAL JUSTICE.” ROCHIN V. PEOPLE OF

CALIFORNIA, SUPRA; THAT IN THE ENFORCEMENT OF THEIR CRIMINAL

LAWS, STATES HAVE COMPREHENSIVE RIGHTS IN FASHIONING THEIR OWN

RULES. KNAPP v. SCHWEITZER, 357 U.S. 371, REHEARING DENIED

358 U.S, 860 (1958), However, THIS COURT IN REVIEWING APPLICATION

FOR HABEAS CORPUS RELIEF TOO HAS ITS RESPONSIBILITY, REGARD FOR

° 61¢

REQUIREMENTS OF THE DUE PROCESS CLAUSE “INESCAPABLY IMPOSES ON APPENDIX D COMMONWEALTH OF PENNSYLVANTA

THIS COURT AN EXERCISE OF JUDGMENT UPON THE WHOLE COURSE OF THE

PROCEEDINGS (RESULTING IN A CONVICTION) IN ORDER TO ASCERTAIN V.

e WHETHER THEY OFFEND THE CANNONS (SIC) OF DECENCY AND FAIRNESS..., SULLIVAN

EVEN TOWARDS THOSE CHARGED WITH THE MOST HEINOUS OFFENSES,”

MALINSKI V. New York, 324 U.S. 401 at 416-417,

FOR THE FOREGOING REASONS, RELATOR’S CONVICTION OF FIRST

has not been reprinted. It can be

found at 371 A.2da 468,

e@ DEGREE MURDER WAS NOT ATTENDED BY THE FUNDAMENTAL FAIRNESS

REQUIRED BY THE FOURTEENTH AMENDMENT OF THE CONSTITUTION, IT

APPENDIX E COMMONWEALTH OF PENNSYLVANTA

CANNOT STAND AND THE WRIT MUST ISSUE,

ACCORDINGLY, | MAKE THE FOLLOWING: V.

e RECOMMENDAII1ON SULLIVAN

Now, THIS 3RD DAY OF NovemBer, 1977, IT IS RESPECTFULLY

RECOMMENDED THAT RELATOR’S PETITION FOR A WRIT OF HABEAS CORPUS found at 446 Pa. 419,

BE GRANTED, AND THAT THE EXECUTION OF THE WRIT BE STAYED FOR A

PERIOD OF SIxTY (60) DAYS FROM THE DATE OF THE ORDER OF THE

has not been reprinted. It can be

CouRT TO GIVE THE COMMONWEALTH AN OPPORTUNITY TO APPEAL AS

PROVIDED BY LAW, OR TO RELIST THE BILL OF INDICTMENT FOR A

SPEEDY TRIAL.

(Rt TER Stabe s WACt ST RATE

lF

APPENDIX F

PEINION OF THE CourT oF Common PLEAS Denyinc Post ConvicTION

ELIEF

OPINION

DOTY, A.J,

THIS MATTER IS BEFORE THE COURT FOR CONSIDERATION OF

DEFENDANT'S PETITION FOR RELIEF UNDER THE Post CONVICTION

HEARING Act 19 P,S, 1180-1 ET SEQ, SEVERAL EVIDENTIARY HEARINGS

WERE HELD AT WHICH TIME DEFENDANT WAS REPRESENTED BY COUNSEL

OTHER THAN HIS TRIAL COUNSEL, AFTER A CAREFUL CONSIDERATION

OF THE EXTENSIVE RECORD IN THIS CASE, INCLUDING THE TESTIMONY

TAKEN BEFORE US, ORAL ARGUMENT PRESENTED, BRIEFS FILED AND THE

APPLICABLE LAW, WE ARE CONVINCED THAT DEFENDANT'S PETITION MUST

BE GRANTED IN PART AND DENIED IN PART,

A FACTUAL BACKGROUND WHICH GAVE RISE TO THIS CASE HAS

BEEN SET FORTH BY THE PENNSYLVANIA SUPREME COURT IN ITS

OPINION DATED DECEMBER 29, 1971. COMMONWEALTH VS, SULLIVAN,

446, Pa, 419 (1971), SuccINCTLY STATED, THE DEFENDANT WAS

CONVICTED FOLLOWING A TRIAL BEFORE THE HONORABLE ALEXANDER

F, BARBIERI AND A JURY OF THE CRIME OF FIRST DEGREE MURDER IN

THE DEATHS OF RITA JANDA AND JOHN GOREY, FOLLOWING THE FILING

AND DENIAL OF POST TRIAL MOTIONS BY A COURT EN BANC, A DIRECT

tn VIEW OF OUR COMMENTS WHICH FOLLOW, THERE MAY BE SOME

DISCREPANCIES ARGUED BY COUNSEL CONCERNING THE FACTUAL

SITUATION, BUT THE SHORT SUMMARY IN THE PRIOR REPORT WILL

SUFFICE FOR THE PURPOSE OF THIS OPINION,

2F

APPEAL WAS FILED ON SEPTEMBER 6, 1968 AND CERTIORARI FROM THE

SUPREME COURT WAS FILED ON SepTemBerR 10, 1968. As sTATED

HEREINABOVE, THIS CASE WAS DECIDED BY THE PENNSYLVANIA SUPREME

Court ON DecemBer 29, 1971. THE JUDGMENT OF SENTENCE WAS

THEREIN AFFIRMED BY AN EVENLY DIVIDED COURT, ONE JUSTICE

TAKING NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE,

On January 10, 1972, A PETITION FOR REHEARING WAS FILED

WITH THE PENNSYLVANIA SuPREME CouRT AND ON FeBruary 22, 1972

THAT PETITION FOR REHEARING WAS DENIED. THIS IS THE FIRST

PETITION FILED BY DEFENDANT UNDER THE Post CoNnvVICTION HEARING

Act,

ALTHOUGH MOTIONS FOR NEW TRIAL AND MOTIONS IN ARREST OF

JUDGMENT WERE HEARD BEFORE A THREE JUDGE COURT EN BANC IN THE

COURT BELOW, ONE OF DEFENDANT’S TWO COUNSEL, G. Frep D1Bona,

ESQUIRE, WAS APPOINTED A JUDGE OF THE CourT oF Common PLEAS oF

PHILADELPHIA (APRIL, 1969). PRIOR TO FURTHER PROCEEDINGS ON

APPEAL. AFTER Mr. (Now JupGe) DrBoNa’s APPOINTMENT TO THE

BENCH, THERE WAS CONSIDERABLE CONFUSION CONCERNING THE ONGOING

REPRESENTATION OF DEFENDANT, JuDGE DIBONA TESTIFIED IN THE

EVIDENTIARY HEARING BEFORE US THAT HE DID NOT FILE A BRIEF IN

THE SuPREME CouRT, HE STATED THAT A ROUGH DRAFT OF THE BRIEF

HAD BEEN PREPARED BUT HE HAD NO KNOWLEDGE OF A BRIEF EVER

BEING FILED, NOR DID HE HAVE ANY CONVERSATION WITH THE

DEFENDANT AS TO THE WAIVING OF ORAL ARGUMENT IN THE SUPREME

3F

Court. A, CHARLES PeruTO, ESQUIRE, DEFENDANT'S CO-COUNSEL,

TESTIFIED BEFORE US THAT JUDGE DIBONA WAS CHIEF COUNSEL IN

THE CASE. HE STATED THAT THERE WAS SOME QUESTION ABOUT

SUBMITTING THE CASE TO THE SUPREME COURT ON BRIEFS BUT IT WAS

HIS RECOLLECTION THAT HE NEVER WROTE A BRIEF AND HE DOES NOT

RECALL FILING AN APPEAL IN THE SUPREME CouRT, PARENTHETICALLY,

HOWEVER, WE DO NOTE THAT THE OFFICIAL SUPREME COURT REPORT OF

THIS CASE DOES INDICATE MR, PERUTO’S APPEARANCE FOR THE

DEFENDANT, IN ADDITION, FOOTNOTE No, 1 ON PaGE 423, OF THE

SUPREME COURT'S OPINION INDICATES THAT A BRIEF WAS FILED BY

"COURT-APPOINTED COUNSEL” AS WELL AS THE APPELLANT IN PROPRIA

PERSONA,

James D, CRAWFORD, ESQUIRE, FORMERLY CHIEF OF THE APPEALS

Division OF THE District Attorney's OFFICE TESTIFIED THAT HE

HAD A CONVERSATION WITH MR, PERUTO WHO SAID HE WOULD BE

INTERESTED IN SUBMITTING THE CASE ON BRIEFS, (WITHOUT ORAL

ARGUMENT), MR, CRAWFORD FURTHER STATED THAT WHILE MOST DIRECT

APPEALS IN FIRST DEGREE MURDER CASES HAVE ORAL ARGUMENT,

MR. PERUTO TOLD HIM THAT HE WAS VERY BUSY AND THAT THE MATTER

MIGHT BE SUBMITTED ON BRIEFS, HE ALSO STATED THAT MR, PeRUTO’s

OFFICE SENT OVER A BRIEF TO THE SUPREME CoURT BUT HE DID NOT

KNOW WHO ACTUALLY DELIVERED IT TO THE SuPREME CourT, IN

ADDITION, DEFENDANT APPARENTLY FILED A PRO SE BRIEF ON HIS OWN,

ALTHOUGH THERE IS NO TESTIMONY THAT DEFENDANT WAS EVER TRAINED

uF

IN THE LAW, IT IS TO BE NOTED THAT Mr, CRAWFORD FURTHER

TESTIFIED THAT HIS BRIEF WAS NOT FILED UNTIL SEVEN MONTHS

AFTER THE FILING OF THE APPEAL,

AT THE EVIDENTIARY HEARING BEFORE us, MR, PERUTO TESTIFIED

THAT TO THE BEST OF HIS RECOLLECTION HE NEVER PRESENTED ANY

ORAL ARGUMENT TO THE SuPREME CourT, HE FURTHER TESTIFIED

THAT HE HAD ABSOLUTELY NO RECOLLECTION OF FILING A BRIEF WITH

THE SUPREME COURT, ON THE CONTRARY, HE STATED THAT WHILE

JupGe DiBona’s OFFICE MAY HAVE FINALIZED A DRAFT ON A BRIEF

AND FILED IT WITH THE SUPREME CourT, HE, MR. PERUTO, WAS

CERTAIN THAT HE HIMSELF NEVER FILED SUCH A BRIEF, WHEN ASKED BY

DEFENDANT'S COUNSEL AT THE EVIDENTIARY HEARING THE FOLLOWING:

Q, SO YOU NEVER FILED A BRIEF, AND | SUPPOSE YOU

NEVER ORALLY ARGUED THE CASE BEFORE THE SUPREME CouRT?

MR, PERUTO ANSWERED:

A, I NEVER DID ANYTHING FOR JOHN SULLIVAN, WHICH

WILL GO DOWN TO THE DAY I DIE, BECAUSE I, TOO, FELT

THAT IT WAS THE WORST CASE IN MY LIFE OF AN UNFAIR

CONVICTION,

DEFENDANT TESTIFIED (Pace 232, PCHA, NT.) THAT MR. PERUTO CAME

TO SEE HIM AND SAID THAT THEY WERE GOING TO “PUT THE APPEALS

IN", HE SAID, "CHUCK, DON’T FORGET, I WANT You TO ARGUE THIS

CASE” AND MR, PERUTO REPLIED, "I DON’T FEEL THAT 1 SHOULD ARGUE

THE CASE”, HE FURTHER TESTIFIED THAT HE DID NOT CONSENT TO

WAIVER OF ORAL ARGUMENT BUT THAT MR, PERUTO SAID “DON’T WORRY

ABOUT IT” AND WALKED OUT,

5F

A CAREFUL CONSIDERATION OF ALL THE TESTIMONY CONCERNING

DEFENDANT'S APPELLATE RIGHTS CLEARLY INDICATES THAT ORAL

ARGUMENT WAS NOT WAIVED BY DEFENDANT AND THAT THERE WAS

CONSIDERABLE CONFUSION BETWEEN COUNSEL CONCERNING THE APPEAL

DUE TO JUDGE D1BONA’S APPOINTMENT TO THE BENCH AND Mr, PERUTO’S

HEAVY TRIAL SCHEDULE. IN A MATTER INVOLVING A CONVICTION FOR

FIRST DEGREE MURDER, IT IS OUR OPINION THAT DEFENDANT'S RIGHTS

SHOULD HAVE BEEN FULLY PROTECTED AND EVERY POSSIBLE ARGUMENT

FULLY EXPLORED, WE CANNOT SAY THAT THIS WAS DONE IN THIS CASE,

ARTICLE I, $9, OF THE PENNSYLVANIA CONSTITUTION PROVIDES

THAT IN ALL CRIMINAL PROSECUTIONS THE ACCUSED HAS THE RIGHT TO

BE HEARD BY HIMSELF AND HIS COUNSEL, WE TAKE THIS TO INCLUDE

NOT ONLY TRIAL BUT ALSO IN THE SUBSEQUENT PROCEEDINGS, SEE,

STEWART vs, COMMONWEALTH, 117 Pa, 378, 381; COMMONWEALTH Vs.

McNair, 298 Pa, Superior Court, 369 (1966),

WE ARE MINDFUL OF THE FACT THAT THE SUPREME CouRT DIVIDED

EVENLY IN ITS DECISION IN THIS CASE, ORAL ARGUMENT MIGHT HAVE

PERSUADED A DIFFERENT DECISION, FURTHERMORE, DEFENDANT WAS

ENTITLED TO A CAREFULLY PREPARED BRIEF BY HIS COUNSEL SO THAT

HIS ARGUMENT COULD BE FULLY PRESENTED AND IT DOES NOT APPEAR

THAT THAT WAS DONE IN THIS CASE, TO THIS EXTENT WE FIND AS A

FACT THAT THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL AND THAT

THIS REQUIRES GRANTING DEFENDANT RELIEF,

6F

IN THE INSTANT PETITION DEFENDANT HAS RAISED A NUMBER

OF OTHER CONTENTIONS WHICH CAN BE ARGUED ON APPEAL. HOWEVER,

THERE ARE SEVERAL MATTERS WHICH DESERVE OUR FURTHER ATTENTION,

1. DEFENDANT CONTENDS THAT A SECRET MEMORANDUM WAS

PRESENTED TO THE TRIAL JUDGE BY THE DISTRICT ATTORNEY AND THAT

THIS MEMORANDUM WAS NOT DISCLOSED TO DEFENSE COUNSEL, JUDGE

BARBIERI TESTIFIED THAT HE DID HAVE SOME RECOLLECTION OF A

MEMORANDUM PRESENTED BY RICHARD A, SpraGue, First ASSISTANT

DistRICT ATTORNEY, BUT THAT THIS MEMORANDUM HAD NO REAL

BEARING ON THE CASE, THIS COMMUNICATION CONCERNED THE FINDING

OF CERTAIN GUNS WHICH WERE NOT USED IN THIS CASE. IT DOES NOT

APPEAR TO US THAT THIS HAD ANY EFFECT ON THE TRIAL JUDGE’S

RULING AND FURTHERMORE, THE JURY WAS NOT INFORMED OF THE

COMMUNICATION NOR THE CONTENTS OF IT, A CAREFUL READING OF THE

RECORD INDICATES NO PREJUDICE TO THE DEFENDANT ON THIS GROUND,

2. DEFENDANT CHARGES THAT THE TRIAL JUDGE INDICATED TO

HIS TRIAL COUNSEL THAT HE DID NOT THINK DEFENDANT WOULD BE

FOUND GUILTY AND THAT THE TRIAL JUDGE’S RULINGS FAVORED THE

COMMONWEALTH, THERE IS NOTHING IN THE RECORD TO SUBSTANTIATE

SUCH A CONTENTION NOR DO THE TRIAL JUDGE’S RULINGS INDICATE

THAT THIS WAS THE CASE. JUDGE BARBIERI TESTIFIED THAT HE

NEVER INDICATED TO DEFENSE COUNSEL THAT HE THOUGHT DEFENDANT

WOULD BE ACQUITTED. FURTHERMORE, IT MUST BE BORNE IN MIND

THAT THIS WAS A JURY TRIAL AND THE JURY HAD THE ULTIMATE DECISION

IN THIS CASE, ABSOLUTELY NOTHING IN THE RECORD INDICATES THAT

THE JURY WAS INFLUENCED IMPROPERLY,

7F oF

&

3, DEFENDANT OBJECTS TO THE ADMISSION OF COLOR SLIDES AT 7, AFTER-DISCOVERED EVIDENCE: DEFENDANT CONTENDS THAT

TRIAL, ADMISSION OF COLOR SLIDES WAS DISCUSSED AT LENGTH BY HE HAD WITNESSES WHO SHOULD HAVE BEEN CALLED ON HIS BEHALF.

THE SUPREME COURT IN ITS PRIOR OPINIONS AND IF THE DEFENDANT IT IS OUR OPINION THAT DEFENDANT HAS FAILED TO MEET THE TESTS

CourT. 491 Pa, 222 (1969), DEFENDANT RAISES A NUMBER OF OTHER CONTENTION!

4 ALLEGES ERRORS IN THE TRIAL JUDGE’S CHARGE: THIS IN PROCEEDINGS BEFORE US BUT ALL OF THESE CAN BE COVERED ON RE-

1S ALSO A MATTER FOR ARGUMENT BEFORE THE SUPREME CouRT, ARGUMENT IN THE SUPREME CouRT.

Jupce DrRonA TESTIFIED THAT THE DEFENDANT WAS FULLY CONSULTED ORDER

CONCERNING HIS RIGHT TO TESTIFY AND THAT THE DECISION OF

‘ AND NOW, To wit, THIS 6TH DAY oF NovemBER, 1974, DEFENDANT

DEFENDANT NOT TO TESTIFY WAS MADE JOINTLY BY COUNSEL AND THE

IS HEREBY GRANTED LEAVE, NUNC PRO TUNC, TO RE-FILE AN APPEAL IN

CLIENT, WE SEE NO QUESTION OF INEFFECTIVE ASSISTANCE OF coMMseL

HERE,

* THE SUPREME CoURT OF PENNSYLVANIA AND TO FILE BRIEFS AND PRESENT

ORAL ARGUMENT THERON; PETITION FOR RELIEF UNDER THE Post

6, SUFFICIENCY OF THE EVIDENCE. THE DEFENDANT ALSO CON-

CONVICTION HEARING ACT IS OTHERWISE DENIED,

TENDS THAT HE IS ENTITLED TO RELIEF IN THESE PROCEEDINGS

/s/ ETHAN ALLEN Doty, A.J,

BECAUSE THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO

SUSTAIN HIS CONVICTION. THIS CONTENTION WAS THE SUBJECT OF e

EXTENDED DISCUSSION BY THE PENNSYLVANIA SUPREME CouRT IN ITS

PRIOR OPINION, WE HAVE HEARD NOTHING IN THE PROCEEDINGS

BEFORE US WHICH REQUIRES PosT ConvICTION HEARING AcT RELIEF.

IF THIS CASE IS RE-ARGUED IN THE SUPREME COURT THERE MAY BE A e

FULL ARGUMENT ON THE QUESTION OF SUFFICIENCY OF THE EVIDENCE,

w