# Opposition — Cuyler v. Sullivan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 335

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0302%3A4. Public record. Not legal advice.