Opposition — Cuyler v. Sullivan

MARILYN J. GELB, ESQUIRE

Attorney 1.0. #1247)

15th Floor

1314 Chestnut Street

Philadelphia, Pennsylvania 19107

(215) K16-3232

IN THE

SUPREME COURT OF THE UNITED STATES RECEIVED

TERM 197__ ard Yee

NO. 78-1832 orrice or THe CLERC

| Supreme Count, US. |}

JULIUS T. CUYLER, Superintendent

and

DISTRICT ATTORNEY OF PHILADELPHIA, Petitioner

V.

JOHN SULLIVAN, Respondent

—- = os

MOTION FOR LEAVE TO PROCLED IN FORMA PAUPERIS

TO THE HONORABLE, THE JUDGES OF THE SAID COURT:

The motion of John Sullivan, respondent, by his attorney

Marilyn J. Gelb, Esquire, respectfully represents:

¥% That he is the respondent in the above-captioned case.

Zs That petitioners in the above-captioned case have filed a

Petition for Writ of Certiorari to the United States Court of Appeals

for the Third Circuit, which Court reversed the order of the United

States District Court for the Eastern District of Pennsylvania, and

issued a Writ of Habeas Corpus discharging respondent from state custody

by order of February 14, 1979.

——— A a a ea i a

en en eo ee ee ee ee

3. That respondent was granted leave to proceed in forma pauperis

by order of Davis, J., of the United States District Court for the

Eastern District of Pennsylvania on July 25, 1977.

4. That respondent was released from state custody on May

24, 1979, having been continuously in custody since his arrest on

homicide charges on November 3, 1966.

D.. That respondent is the owner as tenant by entireties of

premises 751 Michell Street, Ridley Park, Pennsylvania, which realty

is the home his wife and minor child presently occupy and which he is

reliably informed is encumbered by a first mortgage held by the

Industrial Valley Bank with a principal sum in excess of $10,000.00.

6. That he has no bank accounts and no other assets; that he has

no income other than social security disability benefits due to his

il] health; that he is unable to work and has no money to proceed with

the Answer to the Petition for Writ of Certiorari.

WHEREFORE, respondent prays the Court to permit him to file

the Answer to the Petition for Writ of Certiorari without paying fees

or costs.

Respectfully submitted,

P

\ \f Bs, ~ \ . Pat v

Marilyn 0. Ge[b, Esquire

Attorney for

Ll.

he Respondent.

Forma Pauperis Affidavit

COMMONWEALTH OF PENNSYLVANIA: |

COUNTY OF PHILADELPHIA

JOHN SULLIVAN, being first sworn under oath, presents that

he has subscribed to the above and does state that the information

therein is true and correct to the best of his knowledge and belief.

/

j

~~

Le John Sullivan

Sworn to and Subscribed

A,

Before Me This-27. Day

uly, 1979.

EY. OO

ublic

Notary

MARGARET H. BURNS

Notary Public, Phila . Phifa, Co.

My Commission Expires March 3, 1983

My Commission Expires:

é RECE|y ;

E

D INDEX Page

AUG ~ 2 1979 itati

| Table of Citations II;I11I

OFFICE oF 1; ' | ,

iN TRE SUPREME tou Opinions Below 1

Jurisdicti

SUPREME COURT OF THE UNITED STATES | ee ne

Questions Presented 2

TERM 197

nO. 7801832 Constitutional Provisions Involved 3

Statutory Provisions Involved 3

JULIUS T. CUYLER, Superintendent | Statement of the Case 3-10

and | Reasons for Denying the Petition 11-30

DISTRICT ATTORNEY OF PHILADELPHIA, . Cone tucten 30

Petitioner |

V.

JOHN SULLIVAN, Respondent

RESPONDENT'S ANSWER TO PETITIONERS’

PETITION FOR WRIT OF CERTIORARI TO THE |

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Marilyn J. Gelb, Esquire

Attorney for Respondent

15th Floor

1314 Chestnut Street

Philadelphia, PA 19107

(215) KI6-3232

TABLE OF CITATIONS

Federal Cases

Austin v. Erickson,

477 F.2d 620 (8th Cir. 1973)

Foxworth v. Wainwright,

516 F.2d 1072 (5th Cir. 1975)

Haggard v. State of Alabama,

550 F.2d 1019 (5th Cir. 1977)

Holloway v. Arkansas,

435 U.S. 475 (1978)

Johnson v. Zerbst,

304 U.S. 458 (1938)

Kaplan v. Bombard,

573 F.2d 708 (2nd Cir. 1978)

Lollar v. United States,

376 F.2d 243 (0.C.Cir. 1967)

McHenry v. United States,

420 F.2d 927 (10th Cir. 1970)

Ramsey v. United Mine Workers

401 U.S. 302 (1971)

Thatcher v. Bordenkircher,

590 F.2d 640 (6th Cir. 1979)

Townsend v. Sain,

372 U.S. 293 (1963)

United States v. Atkinson,

565 F.2d 1283 (4th Cir. 1977), cert. denied

98 S.Ct. 2845 (1978)

United States v. Carrigan,

543 F.2d 1053 (2nd Cir. 1976)

United States v. Foster,

469 F.2d 1 (1st Cir. 1972)

United States ex. rel Hart v.

478 F.2d 203 (3rd Cir. 1973)

Il

of America,

Davenport,

- — United States v. Mondell

925 F.2d 671 (7th Cir. 1975)

° Cc

14;15 Unites States v. Ortiz,

422 U.S. 891 (1975)

18; 1¢ United Stat 1

es ex. rel Sullivan v.

593 F.2d 512 (3rd Cir. 1979) a

18

+ United States,

; 374 (3rd Cir. 1969 j

a 399 U.S. 915 (1970) re ane

Watkins v. Wilson,

- 408 F.2d 351 (9th Cir. 1969)

‘a | Pennsylvania Cases

Commonwealth v. Sullivan,

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

Commonwealth vy. Sullivan,

- 472 Pa. 129, 371 A.2d 468 (1977)

Commonwealth v. Werner,

*s 217 Pa. Super. 49, 268 A.2d 195 (1970)

Commonwealth ex.rel Whitling y 6

‘ 406 Pa. 45, 170 A.2d 64) (1962) =

29

13

a3t?

Wasud

23

III

13

22

29

16

18

5;25

5;6;

30

30

IN THE

SUPREME COURT OF THE UNITED STATES

TERM 197__

NO. 78-1832

JULIUS T. CUYLER, Superintendent

| and

DISTRICT ATTORNEY OF PHILADELPHIA,

Petitioner

V.

JOHN SULLIVAN, Respondent

RESPONDENT'S ANSWER TO PETITIONERS'

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The respondent, John Sullivan,

respectfully prays that a Writ of Certiorari

not issue to review the judgment and opinion

of the United States Court of Appeals for the

Third Circuit entered in the above-entitled

case on February 14, 1979.

OPINIONS BELOW

The Opinions below are reproduced

in the Petition.

JURISDICTION

The jurisdictional requisites are

adequately set forth in the Petitions.

QUESTIONS PRESENTED

1. Should certiorari be granted if the

Circuits adhere to a differing standard of

review of Sixth Amendment claims in a case

where the underlying facts supporting a

Sixth Amendment violation compel the same

result reached by the Court below under any

standard of review?

Zz Should the petition be granted as to an

alleged absence of state action, where such

allegation is raised for the first time in

the petition, and where in any event the

record demonstrates state action for Fourteenth

Amendment purposes?

3. Should the petition be granted on the

basis of an allegation of abuse by the Third

Circuit of state fact finding process, where

the Third Circuit decided no facts but reached

conclusions of law based upon facts developed

in the record?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory

provisions involved are set forth in the

Petitions.

STATEMENT OF THE CASE

PROCEDURAL HISTORY

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

a minor labor union official, and Rita Janda,

his companion, were shot to death in Gorey's

office at the Philadelphia headquarters of

Teamsters Local 107. Respondent, John Sullivan,

was arrested and indicted for the murders, as

were two others, Gregory Carchidi and Anthony

DiPasquale.

Two attorneys, G. Fred DiBona and A.

Charles Peruto, entered appearances on behalf

of each of the three defendants. Respondent,

in June, 1967, came to trial first. The defense

rested without putting on any evidence. The

jury convicted the respondent and sentenced

him to life imprisonment. Carchidi was later

acquitted of the same charges in a separate

trial on January 26, 1978, as was DiPasquale

on March 14, 1968.

Respondent's post trial motions in July

1968 were denied by a three judge panel of the

Court of Common Pleas, with one judge voting

to grant a new trial. After sentence of two

consecutive life sentences was imposed,

respondent filed a direct appeal to the

Pennsylvania Supreme Court. He also filed an

application in the trial court for a writ of

error coram nobis, which was denied. Asserting

Sixth Amendment claims including ineffective

assistance of counsel in failing to brief his

appeals, respondent petitioned pro se for

habeas corpus relief in federal court. The

petitions were dismissed on September 17 and

December 31, 1969, and on November 26, 1969 the

docket of the Pennsylvania Supreme Court

reflected the claim that no briefs were ever

filed on his behalf in the Pennsylvania

Supreme Court. The essence of respondent's

collateral attack of his conviction in

federal court was later raised in state court

post conviction proceedings.

5.

On December 29, 1971, an equally divided

Pennsylvania Supreme Court affirmed Sullivan's

convictions, with three justices voting to

discharge Sullivan because the evidence was

insufficient to support the verdicts.

Commonwealth v. Sullivan, 446 Pa. 419, 286

A.2d 898 (1971). Respondent, through new

counsel who continues to represent him, has

twice been denied reconsideration of the

Supreme Court decision. Commonwealth v.

Sullivan, 472 Pa. 129, 180, 371 A.2d 468, 492

(1977).

Respondent then collaterally attacked his

conviction in the Pennsylvania courts. On

October 30, 1973, a petition for post conviction

relief under the Pennsylvania Post-Conviction

Hearing Act (PCHA), 19 P.S. §1180.1 et.seq.,

was filed. This resulted in five days of

evidentiary hearings. Sullivan, Carchidi,

Peruto, DiBona, the trial judge and others

testified. On November 6, 1974, the PCHA court

ruled that respondent had been denied effective

assistance of counsel on appeal and permitted

him to file a second direct appeal to the

Pennsylvania Supreme Court.

Sullivan filed his second appeal nunc pro

tunc and 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 on

January 16, 1975. On February 28, 1977, the

Supreme Court affirmed the Original conviction

and the denial of post-conviction relief.

Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d

468 (1977), with a factual finding of

ineffective assistance of counsel on appeal.

Respondent then filed for habeas corpus

in the United States District Court for the

Eastern District of Pennsylvania. The petition

was referred for report and recommendation to

a United States Magistrate, who found that Sixth

Amendment grounds for relief existed and

recommended that the writ issue.

7.

The district judge denied the petition.

Respondent appealed the order to the United

States Court of Appeals for the Third Circuit,

which reversed the district court and issued

the writ on the grounds that respondent's

Sixth Amendment rights had been violated by

a conflict of interest arising out of the

dual representation, by Peruto and DiBona, of

respondent and his co-defendants.

FACTUAL HISTORY

At trial the Commonwealth adduced the

following evidence in support of charges against

John Sullivan:

Francis McGrath, then employed as a janitor

by Local 107, Teamsters Union, arrived at Union

Headquarters at 105 Spring Garden Street in

Philadelphia at approximately 5:15 P.M. on

June 17, 1966. He drove into the parking lot

and parked his car. He observed other cars

parked on the lot, one being John Sullivan's and

another being John Rispo's. (N.T. trial, 677-678)

He testified he saw and spoke to John Sullivan,

who was at that time a delinquent accounts

collector for the Union. Sullivan had been

talking on the telephone, and when he hung up,

he asked the janitor what he was doing there.

McGrath explained that he had not come in on

Thursday, the day before, although Thursday was

his normal cleaning day, (N.T. trial, 677) and

that there had been complaints about his cleaning

He therefore decided to come in on this day,

Friday, instead. McGrath said he and Sullivan

together observed John Gorey and Rita Janda

arrive in the parking lot, and shortly afterwirred

McGrath and Gorey had a conversation out of the

presence of Sullivan during which time Gorey

told McGrath that there were complaints made to

the effect that the janitor had not been keeping |

the building clean. (N.T. trial 832). McGrath

said Gorey then left and Sullivan then came into

the room which he (McGrath) was cleaning, and

suggested that he let the cleaning go until

after the meeting took piace on Sunday. McGrath

then talked to Sullivan about his conversation

with Gorey. While they were talking, Gregory

Carchidi, also a janitor for the Union, entered.

(N.T. trial 692). McGrath then brought up the

subject of the cleaning and told Carchidi what

Gorey had relayed to him. Carchidi made a

similar suggestion to let the cleaning go until

after the meeting on Sunday. Sullivan had

already left the room when this portion of the

conversation took place. (N.T. trial 693, 836).

McGrath said that he then heard loud noises like

firecrackers. Carchidi, according to McGrath's

testimony, said “Get out of the building and

don't say nothing." whereupon McGrath did

exactly that. McGrath testified that there

were at least six ways of getting upstairs to

the second floor from the ground floor of the

building. (N.T. trial, 592).

On his way out, McGrath stopped to have

@ conversation with one Nicholas Franks who was

Standing on the sidewalk near Gorey's second

floor office. (N.T. trial 697, 849). Others

were standing nearby also. McGrath said

Sullivan's car and Rispo's were still on the

parking lot, and this time he observed Carchidi's

car as well. The janitor said he returned

later and found that all the offices had been

e s

10.

locked, the lights turned off, and the building

deserted. He thereupon removed evidence

indicating that he had been in the building, and

without checking any of the rooms in the

building, he left for the second time that

evening. The bodies of Gorey and Janda were

found the next morning in Gorey's second fioor

office. No eyewitness evidence nor physical

evidence of any nature was ever found linking

Sullivan to the murders. Nothing found on his

person or among his effects supplied any

inference that he had ever been in John Gorey's

office. No murder weapons were ever discovered,

and no scientific evidence of any nature was

found which would tend to prove circumstantial ly

that Sullivan committed the crime. On November

3, 1966 Sullivan and Carchidi as well as Anthony

DiPasquale were arrested and charged with these

crimes. Carchidi and DiPasquale were both

acquitted subsequent to Sullivan's convictions

as herein detailed.

7.

REASONS FOR DENYING THE PETITION

- Even if Disagreement exists among

the circuits in determining the standard.

Tor review in cases of conflicts of

Interest for Sixth Amendment Purposes, the

instant case is not emblematic of that

disagreement and therefore presents no

Issue warranting this Court's attention,

Notwithstanding petitioners' assertion

(petitioners' brief p. 13), the standard for.

determining conflicts of interest in the

Sixth Amendment context utilized by the Third

Circuit is not unique. To the contrary,

that standard is in fundamental agreement

with six other circuits. Additionally, the

law of the Commonwealth of Pennsylvania,

under which the respondent was tried, reflects

the standard utilized in the Third Circuit.

Finally there can be no question that the

result reached by the Third Circuit would be

unaffected by application of the strictest

existing standard. The conclusion that

12.

respondent was denied effective assistance

of counsel at his trial is amply supported

by evidence of an actual conflict of

interest by which respondent was prejudiced.

The cases cited by petitioners to

support the proposition that only the Third

Circuit, the District of Columbia Circuit, and

possibly the Eighth Circuit require minimal

proof of a conflict of interest in order

to find a Sixth Amendment violation do not

support that proposition. The majority rule

in the circuit courts requires that an actual

conflict and/or prejudice in fact need only

be shown where a valid waiver of the right

to be singly represented occurred at trial

RY The bulk of cases “ee by petitioners

a aa close sevetins, cases in which the

circuit courts have attempted to define

the components of an effective waiver, without

reaching the merits of the underlying Sixth

Amendment claim. It is in tre standard for

determining a waiver of the right to be

13.

singly represented that the circuit courts

diverge, and not in determining what

constitutes a conflict of interest in the

absence of such a waiver. See, e.g., United

States v. Foster, 469 F.2d 1 (Ist Cir. 1972)

(trial judge under duty to inquire into joint

representation; where such inquiry is not

of record, government has burden of showing

unlikelihood of prejudice by a preponderance

of the evidence); Kaplan v. Bombard, 573 F.2d

708 (2nd Cir. 1978) (even if there is an

effective waiver, court may find Sixth

Amendment violation if actual prejudice is

shown); United States v. Carrigan, 543 F.2d

1053 (2nd Cir. 1976) (actual conflict of

interest prejudiced defendant despite an

effective waiver); United States v. Atkinson,

965 F.2d 1283 (4th Cir. 1977), cert. denied,

98 S.Ct. 2845 (1978) (constructive waiver

found by defendant's decision to continue with

same counsel); United States v. Mandell, 525

F.2d 671 (7th Cir. 1975) (duty of effectuating

14.

waiver for jointly represented defendants

is upon the bar, rather than the court);

Austin v. Erickson, 477 F.2d 620 (8th Cir.

1973) (court under affirmative duty to

inquire into joint representation; where

no inquiry appears of record, waiver will

not be presumed); Lollar v. United States,

376 F.2d 243 (D.C. Cir. 1967) (where no

effective waiver, the burden is on government

to show no conflict of interest beyond a

reasonable doubt). In these cases, the

difficulty has been in determining whether a

Johnson v. Zerbst, 304 U.S. 458 (1938) type

of waiver is required, or whether some lesser

standard of waiver will make the consent to

joint representation effective.

In the instant case, the question of

the respondent waiving his right to be

effectively represented by counsel who also

represented his co-defendants has never been

at issue. At no time was an inquiry conducted

at trial level, directed toward advising

1s.

the respondent of the dangers and difficulties

inherent in dual representation. Indeed, one of the attorneys, Mr. Peruto,

John Sullivan was represented by two testified at post conviction proceedings

attorneys who also represented his co- that the decision not to put on a defense

defendants. All three defendants, Sullivan, was a decision not to expose the defense of

Carchidi, and DiPasquale were tried separately, his other two clients.

so in that sense there was dual representation. | Respondent was never warned of the

Both within and outside of the courtroom, dangers inherent in such representation, and

however, respondent was jointly represented in no way agreed to forego his right to be

with his co-defendants by the two attorneys effectively represented. The circuit court

who made decisions that affected all three. decisions cited by petitioners are therefore

The strategies and conduct of Sullivan's -drrelevant. The Third Circuit standard for

defense were decided in group meetings where determining a conflict of interest “however

the co-defendants actively participated. remote" is established in the absence of an

Decisions not to put on a defense for , effective waiver to a conflict of interest

Sullivan, decisions not to testify, by the respondent. Under these circumstances,

were the standard applied is eminently reasonable.

made in joint meetings of counsel and It is the identical standard which triggers

co-defendants. The interests of the the need for an on-record colloquy in the

co-defendants, who had yet to be tried, | | circuits which require such a colloquy at

informed this decision-making process as much

as the interests of the respondent himself. iether v. United State

375 (3rd Cir. 1969) ce

, 915 (1970).

, 422 F.2d 374 at

t. denied 399 U.S.

S.

=

17.

18.

an informed waiver of single representation.

trial level. In adopting the trial level See, @.9.; Haggard v. State of Alabama, 550

.colloquy/waiver of single representation, the F.2d 1019 (Sth Cir. 1977); Thacher v

First Circuit stated that the rule was Bordenkircher, 590 F.2d 640 (6th Cir. 1979);

designed "to accomplish ( ) an essentially Watkins v. Wilson, 408 F.2d 351 (9th Cir. 1969);

similar result" as the reversal rule where McHenry v. United States, 420 F.2d 927 (10th

such a colloquy does not occur. United States | Cir. 1970). Respondent urges that the most

v. Foster, 469 F.2d.1, at 5 (Ist Cir. 1972).

burdensome of these standards could not alter

See also United States v. Corrigan, 543 F.2d

the conclusion reached by the court below, that

1053 (2nd Cir. 1976) (potential conflict

respondent was denied effective assistance of

triggers the need for an on record waiver of counsel who were burdened by a conflict of

single representation.) interest. The language of the decision below

Only four circuits require a showing of requiring only “the possibility of a conflict,

: : 1 4 ,

actual conflict of interest! in the absence of however remote" tends to obscure the fact

that respondent's two trial counsel, who also

|

represented respondent's co-defendants, had,

Although the terms “actual conflict" and oe Tees, @ conflict oF saterest.

“actual prejudice" are often used synonymously

in this line of decisions, the constitutionali |

mandated rule requires that when an actual

|

The definition, in the Fifth Circuit, of

conflict of interest is shown, no inquiry tate

|

a conflict of interest is articulated in

the degree of prejudice need follow. See

Holloway v. Arkansas, 435 U.S. 475 (1978).

This much is conceded by petitioners (pet.

brief p. 15).

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.

1975). That court defined a conflict of

interest as that which is:

".,.present whenever one defendant stands

to gain significantly

“eS a ee rt ate

19.

20.

by counsel adducing probative evidence

or advancing plausible arguments that

are damaging to the cause of a there was evidence against Sullivan sufficient

co-defendant whom counsel is also

representing." Foxworth, at 1076. to support his conviction. Where the evidence

The Court additionally noted: was, as the lower court found, "scant", any

"It must be remembered that in cases doubt as to competency must be resolved in

involving conflicts of interest, the

conflict does not always appear favor of the respondent. In such a close case

full blown on the record, since counsel

throughout may endeavor to reconcile | the reluctance of trial counsel to put on

the conflict." Id., at 1080, citing

a defense, including the calling of witnesses

Austin v. Erickson, 477 F.2d 620 (8th Cir.

1972).

known to be nearby, and motivated by a concern

for the other defendants, actually prejudiced

Both statements apply to John Sullivan.

the interests of John Sullivan.

His trial attorneys orchestrated his defense

Respondent contends, therefore, that

in deference to the interests of his two

under any current standard of review, his

co-defendants whom they also represented.

Sixth Amendment right to effective assistance

Because the three defendants were tried

of counsel was curtailed by an actual conflict

separately, yet jointly represented otherwise,

of interest. The petition for certiorari

the conflict does not appear full blown on the

presents no issue warranting the review of

‘trial record, but is amplified by the post

this Court.

conviction record.

Both co-defendants were subsequently

acquitted of the charges, although respondent

was convicted. The Pennsylvania Supreme Court

split three to three on the issue of whether

21.

II, Because the question of state action

for Sixth and Fourteenth Amendment

appears for tha first time in the etition

for ic tit:

Waived their right fo raise it here, and

t crefore no cognizable issue is presented

to warrant review by this Court. ee

The petitioners argue (petitioners '

brief pp. 20-29) that in the absence of an

actual conflict of interest, there is no state

action for a Sixth Amendment claim Where a

State prisoner Was represented at trial

by Privately retained counsel. An allegation

Of absence of State action was never briefed

or argued to the courts below. As a result,

the petitioners have Waived their right to

raise the issue here. The allegation that

no Sixth Amendment violation occurred

because no State action was inyolved has not

been preserved for review by this Court.

It has been established that this

Court will not consider issues Presented for

the first time in a petition for writ of

se

certiorari. United States v. ortiz, £22 §.s.

891 (1975), at 898. Nor will this Court decide

an issue where it is unclear from the record

that it was presented below. Ramsey v. United

Mine Workers of America, 401 U.S. 302 (1971)

at giz.

Even had the issue been presented in

the court below, it could not have been

decided adversely to the respondent, since the

State court was at all times aware that

Mr. Sullivan's attorneys also represented

his two co-defendants. Both trial counsel

entered appearances for all three defendants

at the same time. One of the attorneys,

Mr. DiBona, referred to Gregory Carchidi as his

other client at the beginning of respondent's

trial. Mr. Peruto, the other attorney,

referred to DiPasquale as his other client

(N.T. Trial, May 11, 1967, p. 3, at

appendix 47C). That Mr. Sullivan was tried

separately in no way abscured the fact that

he was represented by two attorneys who also

Provided representation for his co-defendants.

23.

In this context, the Third Circuit has held:

"The action of the trial judge in

permitting the case to go forward

without so much as an inquiry as to

potential harm ... is the state action

complained of." Unites States ex rel.

Hart v. Davenport, 478 F.2d 203 (3rd Cir.

1973) at 271.

In the second place, the distinction

urged by petitioners between court appointed

and privately retained counsel has been

explicitly rejected by the Third Circuit:

"A rule which would apply one

Fourteenth Amendment test to assigned

counsel and another to retained counsel

would produce the anomaly that the

non-indigent, who must retain an

attorney if he can afford one, would be

entitled to less protection from the

trial court." Hart v. Davenport, supra,

et Zt.

The petitioners have foregone the right

to raise this issue. Had it been raised, it

would have resulted in a finding of state

action.

Petitioners concede that a showing of

actual conflict of interest disposes of the

question of state action. Respondent asserts

further that an actual conflict of interest

existed, and that this is dispositive of the

24.

entire matter.

At least one of Mr. Sullivan's two trial

attorneys, Mr. Peruto refrained from putting

on a defense because he did not want to expose

the defense of the other two defendants, Carchidi

and DiPasquale. The notes of testimony of

the post conviction hearing bear out this

view:

"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 Commonwealth

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." (N.T. post conviction,

April 25, 1974, p. 101," appendix at 48C).

Even if only one of respondent's two trial

attorneys perceived conflicted motives in

himself for failing to put on a defense, that

attorney also represented the other two

defendants, and provided extensive representa-

tion for the respondent at his trial. As

the Third Circuit opined: os rr

~

"We believe that an attorney who enters

an appearance on behalf of a criminal

defendant, consults with him confidentially

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

objections, 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 the 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." (Appendix, at 11B.)

Since the Third Circuit ruled as a matter

of law that dual representation did exist, the

issue of whether an actual conflict of interest

attended upon this dual representation is

easily resolved. Mr. Peruto's testimony

at post conviction proceedings in 1975 is

buttressed by the trial record in 1967.

For example, a statement by Gregory Carchidi

was entered into evidence at Mr. Sullivan's

; ]

trial as the statement of a co conspirator.

=

This statement was found admissible, on

first review by the Pennsylvania Supreme Court,

as res gestae, or excited utterance.

Commonwealth v. Sullivan, 446 Pa. 419 (1971)

at 439.

25.

26.

Since Mr. Peruto also represented Carchidi,

he was placed in the position of deciding

whether to call Carchidi to rebut the

inference, or allowing the inference to remain

uncontradicted. In choosing the former, Peruto

would have been required to provide

representation for Carchidi as to his Fifth

Amendment Privilege. Instead he chose

Carchidi's right to remain silent at the

expense of Sullivan's defense. At Sullivan's

trial Mr. Peruto demonstrated the extent of

the conflict:

"Peruto: You put me in this position; a

vt ste So by Carchidi offered into

evidence and can only be ref

by Carchidi. 4 a

The Court: It is the law because a

defendant refuses to testify he

can t offer something.

Peruto: The defendant can testify, but how

can he testify to what Carchidi

a and o gba put Carchidi on

record." Meta Geist. J

1967, p. 672, appendix at 58C). sip

Mr. Peruto also failed to put exculpatory

witnesses on the stand at respondent's trial

to protect Carchidi and DiPasquale who,

BT.

Mr. Peruto said, may have been seen on the

night of the crimes. He testified:

"Q. Did you advise the defendant Sullivan

when you were considering whether or

not to put on a defense that these

three witnesses were available and

could help this defense?

A. I don't recall advising him of that,

but I do 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 witnesses

and it might have come out on the cross-

examination of those witnesses in

Sullivan's case." Appendix at 58C.

The state of the record indicates that

Mr. Peruto's perceptions were correct. An

actual conflict of interest was created by

trial counsel's representation of respondent

and his co-defendants.

In the presence of such a conflict, the

allegation that dual representation by netwned

counsel presents no state action for review by

a federal forum becomes irrelevant. Additionally

State action, indicated by the knowledge of tne

trial court that Sullivan's attorneys also

represented his co-defendants, is unquestionably

present, regardless of whether an actual

28.

conflict of interest has been shown. Finally,

petitioners have waived their right to argue

lack of state action in respondent's Sixth

Amendment claim, by failing to raise it at

any point below. Therefore, it is urged that

no issue has been preserved requiring the

review of this Court.

III. The court below decided two issues of

law, relying upon facts found by the state

courts, and thererore violated no principle

of comity or of habeas corpus review which |

warrant the attentior of this Court.

There were two issues of law before the

Court: (1) was respondent dually represented

at his trial by counsel who also represented

his co-defendants, and (2) did this dual

representation deny respondent effective

assistance of counsel under the applicable

standards for such a determination?

The court below answered both questions

affirmatively. In so doing, the court

utilized the record as it had Seen developed

in the Pennsylvania state court system. Although

29.

the court below disagreed with the findings

of the Pennsylvania Supreme Court on the leeus Moreover, even the state supreme court found

incompetence of counsel for failure to

of dual representation, it held:

"Properly speaking the Supreme Court's protect respondent's appellate rights.

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."

United States ex.rel Sullivan v. Cuyler,

993 F.2d 512 (3rd Cir. 1979).

Commonwealth v. Sullivan, supra, 472 Pa. at

145, appendix 17D. Additionally, the

standard used by the court below to determine

the Sixth Amendment violation regarding a

The court below relied on the facts in

conflict of interest is identical to the

the record in reaching a different leaal

standard applied in the Pennsylvania courts.

conclusion. This reliance was compelled by

Commonwealth ex rel. Whitling v. Russell, 406

Townsend v. Sain, 372 U.S. 293 (1963) in which

Pa. 45, 170 A.2d 641 (1962); Commonwealth vy.

——- -- ——

Werner, 217 Pa. Super. 49, 268 A.2d 195 (1970).

this Court held that in petitions for habeas

corpus:

CONCLUSION

"..-Although the district judge may,

where the siate 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 independentiy." Townsend

V. Sain, Supra, at 318.

For all of the foregoing reasons, it is

respectfully requested that the petition for writ

of certiorari to the United States Court of

Appeals for the Third Circuit be denied.

Respectfully Submitted,

¢ « t

28 ‘¢ : ~ € r )

Pe “ Soa ae

Marilyn J’. Gelb

Counsel for Respondent

1314 Chestnut Street - 15 Fl.

Philadelphia, PA 19107

The state court never reached the Sixth

Amendment claim because it concluded there was

no dual representation. Even if it had, the

court below had no obligation to defer to the

findings of fact of the state supreme court.