# Respondents Brief — Castille v. Peoples

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0371%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 346

## Text

i

TABLE OF CONTENTS

Page

TE GP Bs «oo. 0.0.06 ccc ccestcndeceecess ii
STATEMENT OF THI CAGE oo nc ccc ccc cccccccccccccces l
A. Procedural History in the Courts Below ......... l
i RES -ndedccccecexescedesedzecesaees 5
SUMMARY OF ARGUMENT. ......6....cccccccccccceees 10
ati si biked dneesencsasinnecnksanenenas 11

THE SUPREME CouRT OF PENNSYLVANIA Hap A
Farr OpporRTUNITY To REVIEW THE FEDERAL

PE OO ll
I. Discussion Or EXHAUSTION REQUIREMENT ... 13
II. APPLICABLE PROCEDURAL RULES Or THE Com-
MONWEALTH OF PENNSYLVANIA ...........-55: 20
III. APPLICATION OF EXHAUSTION PRINCIPLES To
RESPONDENT'S CLAIMS ......ccccccccccccccces 32

aE AS Re see ie ey IO Neo teee As pine Bhs a - 39

i
TABLE OF AUTHORITIES
FEDERAL CASES

Bisaccia v. Attorney General of New Jersey, 623 F.2d 307
BGI BM ncoccccnccccccccececccucccccccccs

Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982) .......... 16
Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert.
denied, 108 S.Ct. 139 (1987). ..... 2.2. cece ee eee 10

Daye v. Attorney General of New York, 696 F.2d 186 (2d
Ce BONED ccccnccccccccccccccccccccces

Ex parte Hawk, 321 U.S. 114 (1944) ........-.--+---- 13
Ex parte Royall, 117 U.S. 241 (1886).........-----++ 13
Forman v. Davis, 371 U.S. 178 (1962) .........-..+55- 4
Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979).......... 18
O’Halloran v. Ryan, 835 F.2d 506 (3d Cir. 1987) ....... 19
Picard v. Connor, 404 U.S. 270 (1971) ..........---65- 13
Pitchess v. Davis, 421 U.S. 482 (1975) ...........-++5- 13
Rose v. Lundy, 455 U.S. 509 (1982)... .......-- 02220 12

a Texas, 385 U.S. 554, reh’g denied, 386 U.S. 969

Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979) ........--- 16
—— — ex rel. Kemp v. Pate, 359 F.2d 749 (7th Cir. -

United States v. Schreiber, 599 F.2d 534, (3d Cir.) cert.
denied, 444 U.S. 843 (1979) ......... 2c eee eeeees

Wainwright v. Sykes, 483 U.S. 72 (1977) .......-++-++- 11
Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) .......... 17
FEDERAL CONSTITUTION, STATUTES AND RULES
ee... cow cncuccceecececccseses l
BT Chmmee, Gee, BAY onc cc cc cccccccscccccccsess l
eR Gn. acc ccccnccceseccesaccscces 3
Te Pe OD ng cc cvecccccesesecsssescces l
Rules Governing Section 2254 Cases in the United States
District Courts, Rule 8(b)(3) ........- eee eee eee 3
i er rr ee ee 3

STATE CASES

Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255
Ea errreTeT TTT TTT TT tte 32

Table of Authorities Continued

Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961)

Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846
EST TT TTT TTT CL

a v. Cook, 230 Pa. Super. 283, 320 A.2d 461

Commvawealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975)
Commonwealth v. Davis, 499 Pa. 282, 453 A.2d 309 (1982)

Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188
sien ccaniasedeseeeennnseesseseese

Commonwealth v. Faison, 437 Pa. 482, 264 A.2d 394
inci aghagdeaneeeeoeegeteoseseuss

—— v. Fassett, 496 Pa. 529, 487 A.2d 1166

Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978)
— v. Glaze, 366 Pa. Super. 517 531 A.2d 796

——— v. Gravely, 486 Pa. 194, 404 A.2d 1296

Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d
PR Sc cocesecesccccenesecncecsosseosece

C ae v. Hubbard, 472 Pa. 259, 372 A.2d 687

Commonwealth v. Jellots, 277 Pa. Super. 358, 419 A.2d
BEE, cc ceccccceseccscccscevcssceccoseese

Commonwealth v. Johnson, 479 Pa. 60, 387 A.2d 834
ee dé oekebberseesinatseseceteeess

Commonwealth v. Miller, 465 Pa. 458, 350 A.2d 855 (1976)

cc dae cceeccuccenceceusencseueseces
Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978)
Commonwealth v. Murphy, 316 Pa. Super. 178, 462 A.2d
Per rere Tr rT ere Ty
— v. Peterman, 430 Pa. 627, 244 A.2d 723
Commonwealth v. Schmidt, 317 Pa. Super. 241, 463 A.2d
Ps 1 cocoeseonesseccsnceescencesevonees
—— v. Seachrist, 478 Pa. 621, 387 A.2d 661

Page
35

21

iv
Table of Authorities Continued

Commonwealth v. Serianni, 337 Pa. Super. 309, 486 A.2d
PN +5 6 cncnedchviandeasdeatenensioaens

———— v. Smallwood, 465 Pa. 392, 350 A.d 822

—— v. Smith, 494 Pa. 294, 483 A.2d 1349

——— v. Strachan, 460 Pa. 407, 333 A.2d 790

a v. Tessel, 347 Pa. Super. 37, 500 A.2d 144

a v. Turner, 469 Pa. 319, 365 A.2d 847

—— v. Wallace, 495 Pa. 295, 483 A.2d 856

~~ — 6 Cal. 3d 484, 492 P.2d 686 (1972)\(e
Ds kiekaecncscencnsdineséacksdensenabeune ¥

STATE STATUTES AND RULES
42 Pa. Cons. Stat. Ann. § 724 (Purdon 1981)...........
42 Pa. Cons. Stat. Ann. §5918 (Purdon 1982)..........

Post Conviction Relief Act, Act No. 1988-47, 1988 Pa.
Legis. Serv. 229 (to be Codified at 42 Pa. Cons. Stat.
Ann §$§ 9641-9646)... 0... ccc ccc cc cc cece ccc eee

te EE aC cc tin cacuauaesewenaueenaecens
a cc cneeduanecessetcubeadneseuseks

Page
23

21
23
21

STATEMENT OF THE CASE
A. Procedural History In The Courts Below

This case was initiated when Respondent Michael Peo-
ples (hereinafter “Peoples’), a prisoner serving a state
court-imposed term of 15 to 30 years at the Pennsylvania
State Correctional Center at Huntingdon upon his convic-
tion for robbery, arson and aggravated assault, filed on
July 28, 1986 a pro se Petition for a Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2254 (J.A. at 2, 70). In his
habeas petition, filed in the United States District Court
for the Eastern District of Pennsylvania, Mr. Peoples
made the following claims in support of his prayer for
relief:

1. that he was improperly impeached with two prior
robbery convictions and a theft conviction, in violation of
his Fourteenth Amendment due process rights (J.A. at
73);}

2. that he was improperly deprived of a right to a non-
jury trial, in violation of his due process rights and his
rights under the equal protection clause of the Fourteenth
Amendment (J.A. at 74);

3. that suggestive pre-trial identification procedures
were used, in violation of his Fourteenth Amendment due
process rights (/d. }; and

4. that he was denied effective assistance of counsel,
as guaranteed by the Sixth Amendment, based upon his
trial counsel’s failure to move to suppress the fruits of an
illegal arrest and counsel’s failure to object to the admis-
sion of evidence of unrelated criminal conduct (specifi-

! Mr. Peoples also alleged a violation of a state statute (now codified
at 42 Pa. C.S. §5918) regulating the use of convictions in cross-
examination (J.A. at 73).

2

cally, an alleged contempt of court based on the allegation
that Mr. Peoples changed his hair style shortly before a
scheduled line-up) (/d.).

The matter was referred to United States Magistrate
Edwin E. Naythons who directed that a response be filed
and that the state trial court record be delivered to the
clerk of the court (J.A. at 3; App. at 173a). The Phila-
delphia District Attorney filed a response on September
30, 1986, contending that Mr. Peoples had not exhausted
his state remedies and, in the alternative, addressing the
merits of Mr. Peoples’ claims (J.A. at 3).

On October 20, 1986, Mr. Peoples filed a pro se reply to
the Commonwealth’s response, entitled “Petitioner’s Tra-
verse to Respondents [sic] Answer,” contending that he
had exhausted his state remedies and, in the alternative,
that state remedies were inadequate to protect his rights
because of the history of undue delay in state court
adjudication of his claims (J.A. at 3; App. at 63a). He
pointed out that both the Superior Court and the
Supreme Court of Pennsylvania had been given an oppor-
tunity to address his claims, and that he had filed both a
“counseled” (see J.A. at 64) and a pro se Petition for
Allowance of Appeal in the Supreme Court of Pennsyl-
vania (see J.A. at 49).2 When the pro se Petition is consid-

ered, he argued, it is clear that he exhausted his state
remedies.

“A Petition for Allowance of Appeal, akin to Petition for Writ of
Certiorari in this Court, constitutes a request that the Supreme
Court of Pennsylvania exercise its discretionary authority and con-
sider the merits of the appeal. See 42 Pa.C.S. § 724(a) (establishing
discretionary jurisdictior.); Pa. R. App. Pro. 1111 et seq. (setting out
requirements for petition).

Be

3

On April 3, 1987, Magistrate Naythons filed a Report
and Recommendation in which he concluded that Mr.
Peoples failed to exhaust his state remedies, and recom-
mended that the petition be denied without prejudice
(J.A. at 3, 77). The Report and Recommendation did not
discuss or address Mr. Peoples’ pro se Petition for
Allowance of Appeal, but discussed only the “counseled”
petition (J.A. at 78).

On April 17, 1987, five days before the date by which
Mr. Peoples was statutorily required to file his objections
to the Magistrate’s Report and Recommendation,® the
Honorable Marvin Katz of the United States District
Court for the Eastern District of Pennsylvania entered an
order approving and adopting Magistrate Naythons
Report and Recommendation, denying and dismissing
the Petition for failure to exhaust state remedies, denying
a request for state court transcripts, and finding no proba-
ble cause for appeal (J.A. at 4, 84).

On April 20, 1987, three days after the entry of the
order of Judge Katz denying and dismissing the Petition,

3 Under the applicable provision of the Magistrate's Act, Mr. Peo-
ples was required to file any written objections to the Report and
Recommendation within ten days of service of the Report and Recom-
mendation. 28 U.S.C. § 636(b)(1); Rule 8(b)(3) of the Rules Governing
Section 2254 Cases in the United States District Courts. Under
Rules 6(a) and (e) of the Federal Rules of Civil Procedure, weekends
are excluded and three additional days are added since service was
made on Mr. Peoples by mail. Thus, his objections were required to be
filed on or before April 22, 1987.

Even if the additional three days allowed when service is by mail,
under Rule 6(e), is not considered to be subject to the Rule 6(a)
weekend exclusion, Mr. Peoples’ pro se objections to the Magistrate's
Report and Recommendation were still filed in a timely fashion, and
Judge Katz’s April 17, 1987 Order was entered before the deadline
(i.e. April 20, 1987).

4

Mr. Peoples filed a timely pro se document entitled
“Objections to Magistrate Report/Recommendation”
(J.A. at 4, 86). (See also footnote 2, supra, for calculation
of the date for filing objections to Report and Recommen-
dation.) In his pro se objections, Mr. Peoples contended
that he had exhausted his state remedies by alleging,
inter alia, the ineffective assistance of counsel in the
Superior Court and the Supreme Court of Pennsylvania,
and by raising these claims at the earliest opportunity and
in conformity with state procedure (J.A. at 86-87). (See
discussion of state procedure at pages 23 through 31,
infra.)* Thus, he argued, the Report and Recommenda-
tion should not be approved to the extent the Magistrate
found that Mr. Peoples had failed to exhaust his remedies
(Id.)..

Two days after the objections were filed, Judge Katz
entered an order similar to the earlier order of April 17
dismissing the petition for failure to exhaust, adding only
that the objections to the Report and Recommendation
were denied (J.A. at 4, 89).

On April 28, 1987, Mr. Peoples filed a timely notice of
appeal, purporting to initiate an appeal from the order of
April 17,5 and requesting the issuance of a certificate of
probable cause and the appointment of counsel (J. A. at 5;
App. at 81a).

On June 3, 1987, the Honorable Collins J. Seitz of the
United States Court of Appeals for the Third Circuit

4Mr. Peoples also made arguments on the merits of his claims,
rephrasing the claims in certain respects.

5That the notice of appeal referenced the “earlier” final order
constitutes harmless error. Forman v. Davis, 371 U.S. 178 (1962).
Thus, the court of appeals had jurisdiction. /d.

5

granted the request for a certificate of probable cause
(J.A. at 8) and the undersigned was appointed to repre-
sent Mr. Peoples.

Following briefing and oral argument, the Third Circuit
addressed the exhaustion issue in an unpublished per
curiam opinion, reversing the dismissal of the habeas
petition on exhaustion grounds and remanding for consid-
eration of the merits of the habeas claims (J.A. at 90-97).

A timely Petition for a Writ of Certiorari was filed by
the Commonwealth, and was granted by this Court.

B. Factual History

The relevant factual history consists of the procedural
record in the courts of the Commonwealth of Pennsyl-
vania as to Mr. Peoples conviction and appeal, and a
comparison of the manner in which various claims were
made in the state courts with the claims of constitutional
deprivations made in the pro se Petition for Writ of
Habeas Corpus.

Mr. Peoples was convicted by a jury before the Honor-
able James T. McDermott of the Philadelphia Court of
Common Pleas on January 16, 1981 (J.4 at 14). In his Post
Verdict Motions, Mr. Peoples’ trial counsel, Harvey S.
Booker, Esquire, raised the following grounds in support
of Mr. Peoples’ request for post verdict relief:

1. Prosecutorial misconduct based on prejuuicial
speeches to the jury.

2. The identification of Mr. Peoples by James
Wright, a prosecution witness, was impermiss!-
bly tainted.

3. The line-up scheduled at defendant's request was
cancelled.

6

4. The trial court erred in pone the impeach-

ment of Mr. Peoples with two prior robbery con-
victions.
The trial court erred in denying Mr. People’s
request for a non-jury trial.

6. The trial court erred in permitting the cross-
examination of the defendant with uncertified
notes of prior testimony.

7. The trial court erred in giving an accomplice
charge to the jury.

(J.A. at 11-13).

The Honorable Charles P. Mirarchi, Jr.6 entered an

opinion dated June 8, 1982, denying Mr. Peoples’ Post
Verdict Motions (J.A. at 14).

Mr. Peoples appealed to the Superior Court of Pennsyl-
vania, the intermediate appellate court in Pennsylvania's
judicial system. Newly appointed counsel, Vincent T.
Snyder, Esquire, filed a brief on January 1, 1983 (J.A. at

26). In his brief, Mr. Snyder made the following argu-
ments:

1. That trial court erred in failing to ompeners the
identification of Mr. Peoples by James Wright, a
prosecution witness, based on tainted identifica-
tion procedures (J.A. at 27, 29-34).

2. That trial court erred in ng Se Peoples
request for a line-up (J.A. at 28, 34).

3. That trial court erred in ruling that Mr. Peoples
could be impeached with his prior robbery con-
victions. (J.A. at 28, 34-47).

4. That trial court erred in giving an accomplice
instruction to the jury (J.A. at 28, 37-39).

° Judge McDermott had been elected to the Supreme Court of

Pennsylvania in the interim and the case was assigned to Judge
Mirarchi.

Le A |

7

5. That sentences imposed were illegal due to the
merger of offenses (J.A. 28, 39-41).

6. That Mr. Peoples was denied the effective assist-
ance of trial counsel, based on the following
errors (J.A. at 28, 41-43):

a. trial counsel failed to attend the scheduled
line-up and failed to 3 eee a point for charge
on the unreliability of identification testimony.

b. trial counsel failed to prepare adequately in
that he failed to interview Mr. Peoples, was
unable to locate a helpful witness, and failed to
explain to Mr. Peoples his right to a jury and a

non-jury trial. -
. trial counsel was alle under the influence
; of alcohol during gee he to abide by Mr.

Peoples’ wishes as to the use of peremptory
strikes, and did not obtain the notes of the
suppression hearing prior to trial.

d. trial counsel failed to challenge properly the
sufficiency of the evidence and the legality of
the sentences imposed.

The Superior Court affirmed Mr. Peoples’ conviction in
Memorandum Opinion, Per Curiam Order and Judgment
filed on September 16, 1983 (J.A. at 44-48).

On October 14, 1983, Mr. Peoples filed a timely pro se
request for discretionary review by the Supreme Court of
Pennsylvania entitled “Petition for Allowance to File
Appeal to Review Errors of Superior Court with Appoint-
ment of New Counsel” (J.A. at 49) (hereinafter “pro se
Petition for Allowance of Appeal”).?

7There were two copies of Mr. Peoples’ pro se Petition for
Allowance of Appeal filed in the district court. Both copies were
supplied by Mr. Peoples from his personal files and no copy was

8

Mr. Peoples raised the following claims in his pro se
Petition for Allowance of Appeal:

a. That he was denied his right to the effective
assistance of counsel during his appeal to the
Superior Court in that Vincent Snyder failed
to raise claims of error committed by trial
counsel as to the following:

(i) in failing to challenge the fact that Judge
James T. McDermott, the trial judge, failed
to write a timely opinion on Mr. Peoples’
post verdict motions (J.A. at 49-51).

(ii) in failing to object to the prosecutor's preju-
dicial statements in speeches to the jury
(J.A. at 51-52).

(iii) in failing to object to evidence that Mr.
Peoples had changed his appearance
before the scheduled line-up, in violation of
a court order (J.A. at 56-57).

(iv) in failing to object to the manner in which
the burden of proof was “shifted” to Mr.
Peoples as to the issue of identification
based upon the evidence of the change in
his appearance (J.A. at 55-56).

b. That the trial court and the Superior Court
erred as to the admission of Mr. Peoples’ prior
convictions (J.A. at 53).

ce. That the trial court and the Superior Court
erred by ruling that Mr. Peoples was not
entitled to a non-jury trial (J.A. at 53-54).

supplied by the state court.

The district court entered an order directing that the clerk of the
state trial court provide that court's file to the district court. That file
did not include the records of the Superior Court or the Supreme
Court of Pennsylvania.

9

d. That the trial court erred in refusing Mr. Peo-
ples’ request for a lineup (J.A. at 54-55).

e. That trial counsel and —— counsel were
ineffective for failing to object to evidence that
Mr. Peoples had changed his appearance by
cutting his hair after arrest, leading to the
cancellation of the line-up (J.A. at 55).

f. That the lower court erred in giving an accom-
plice charge to the jury (J.A. at 57-58).

In response to the pro se Petition for Allowance of
Appeal, the Supreme Court of Pennsylvania granted the
request for appointment of counsel. The court directed
the appointment of counsel “to assist {Mr. Peoples] in
filing a petition for allowance of appeal” (J.A. at 61).8
Thus, the Supreme Court did not rule on the merits of the
pro se Petition for Allowance of Appeal.

On or about June 1, 1985, Stephen P. Gallagher,
Esquire, newly appointed to represent Mr. Peoples, filed
a Petition for Allowance of Appeal (hereinafter, “coun-
seled Petition for Allowance of Appeal”), making the fol-
lowing claims of ineffective assistance of trial and
appellate counsel (J.A. at 62):

1. The trial court erred in permitting the cross-
examination of Mr. Peoples as to his prior con-
victions (J.A. at 66-67).

2. The trial court erred in refusing Mr. Peoples
motion to suppress physical evidence and a
statement obtained as a result of an unlawful
arrest (J.A. at 67).

8 The Supreme Court of Pennsylvania referred the matter to the
trial court for the appointment of counsel.

10

Mr. Gallagher requested that the Supreme Court of Penn-
sylvania grant a new trial or, in the alternative, remand
the matter for further hearings (J.A. at 68).

Without elaboration, on November 4, 1985, the
Supreme Court of Pennsylvania denied the counseled

Petition for Allowance of Appeal filed by Mr. Gallagher
(J.A. at 69).9

SUMMARY OF ARGUMENT

The Commonwealth contends that the Third Circuit
established a “mere presentation” rule which permits
exhaustion of habeas claims upon a showing that the
claims were placed before the state court, even if in a non-
justiciable posture, and that Mr. Peoples’ claims were not
exhausted because one or more of the claims were
defaulted or otherwise non-justiciable when presented to
the Supreme Court of Pennsylvania.

An earlier decision of the Third Circuit, Chaussard v.
Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, 108 S.Ct.
139 (1987), as broadly interpreted by the Commonwealth,
may be read to establish a rule permitting mere presenta-
tion to the state court of last resort. To the extent that the
Third Circuit’s opinion may be so read, that court has
acted inconsistently with prior decisions of this Court.
Those decisions make clear that a “fair opportunity” to
review the merits of habeas claims requires presentation
in a posture which would permit the state court to reach

the merits of the claims, if it determined to do so in the
exercise of its discretion.

*The Order of the Supreme Court of Pennsylvania states as fol-
lows: “November 4, 1985. Petition Denied.” (J.A. at 69).

ll

Here, one or more of Mr. People’s claims were not raised
at one or more levels of the proceedings in the lower courts
of Pennsylvania, and it is on that basis that the Common-
wealth contends that the claims were in a non-justiciable
posture. However, all of the habeas claims were raised in
the Supreme Court of Pennsylvania in either a counseled
or pro se Petition for Allowance of Appeal, and any failure
to raise a claim at an earlier stage of the proceedings was
alleged to constitute the ineffective assistance of trial or
earlier appellate counsel. Under a well-established and
routinely-applied exception to Pennsylvanias default
rule, Pennsylvania appellate courts may and regularly do
consider the merits of otherwise defaulted claims, where
the failure to raise claims at all earlier stages of the
proceedings is alleged to be due to the ineffective assist-
ance of counsel. Under this rule, all of Mr. Peoples claims
which were defaulted during any earlier stage of the
proceedings before the courts of the Commonwealth of
Pennsylvania were nonetheless in a justiciable posture
before the Supreme Court of Pennsylvania.

Since all of Mr. Peoples’ habeas claims were either
raised at all earlier stages, or if not, it was alleged that the
failure to so raise them was due to the ineffectiveness of
prior counsel, the Supreme Court of Pennsylvania had a
fair opportunity to review the merits of the claims.
Accordingly, the habeas claims are exhausted.

ARGUMENT

The Supreme Court Of Pennsylvania Had A Fair Opportunity
To Review The Federal Habeas Claims

Of the questions most often presented in the federal
court’s adjudication of habeas corpus petitions filed by
state prisoners, see Wainwright v. Sykes, 433 U.S. 72,

12

78-79 (1977),!° this case presents the question of to what
extent a state prisoner must exhaust his state remedies
and, more specifically, by what means are federal courts
to evaluate whether a prisoner's alleged failure to comply
with state appellate procedure deprived the state court of
last resort of a “fair opportunity” to review the claims.
The Commonwealth contends first, that the Third Circuit
has established an incorrect rule by which mere token
presentation of the habeas claims to the state court, even
if in a non-justiciable posture, constitutes a fair oppor-
tunity for state court review; and second, that Mr. Peo-
ples’ claims were in a non-justiciable posture in the
Supreme Court of Pennsylvania. Thus, the Common-
wealth argues, analyzed in terms of the appropriate stan-
dard, one or more of Mr. Peoples’ claims are unexhausted
and his habeas petition should be dismissed."

Mr. Peoples’ position may be stated simply. As broadly
read by the Commonwealth, the Third Circuit’s holding in
an earlier decision (Chaussard v. Fulcomer, 816 F.2d 925
(3d Cir.), cert. denied, 108 S.Ct. 139 (1987)), which was
relied upon by the Third Circuit panel in this case, may
well be inconsistent with the precedent of this Court. Mr.
Peoples does not rely upon any “mere presentation” rule
and thus does not defend the Commonwealth’s broad
interpretation of Chaussard. Rather, as a matter of Penn-
sylvania procedure, Mr. Peoples’ claims were in a posture

'© Wainwright v. Sykes posited that four questions are most often
raised in federal habeas litigation: 1) what types of claims may be
considered? 2) to what extent must the federal court defer to state
court resolutions? 3) to what extent must state remedies be
exhausted? 4) in what instances will an independent state ground bar
consideration of otherwise cognizable claims? 433 U.S. at 78-79.

'! See Rose v. Lundy, 455 U.S. 509 (1982) (all claims in a petition
must be exhausted).

13

in which they could have been reviewed in a routine fash-
ion and in the ordinary course of proceedings by the
Supreme Court of Pennsylvania. Thus, the claims were
properly presented to that court and are exhausted in
accordance with the well-established precedent of this

Court.

I. Discussion Of Exhaustion Requirement
A. General Principles

This Court has examined the exhaustion requirement
several times during the last century, beginning with Ex
parte Royall, 117 U.S. 241 (1886), and although “this line
of authority has not been without uncertainties and
changes in direction on the part of the Court,” Wain-
wright v. Sykes, 433 U.S. at 81, the comity-based under-
pinnings of the exhaustion requirement have been
consistently recognized. See, ¢.g., Ex parte Royall, 117
U.S. 241, 251 (the exhaustion rule is based upon a “recog-
nition of the fact that the public good requires (that rela-
tions between federal and state courts] be not disturbed
by unnecessary conflict between courts equally bound to
guard and protect rights secured by the Constitution );
Picard v. Connor, 404 U.S. 270, 275-76 (1971) (quoting Ex
parte Royall); Rose v. Lundy, 455 U.S. 509 (1982) (quot-
ing Ex parte Royall; the Court examines policy underpin-
nings for rule).

This Court has had occasion to examine specifically the
required mode of presentation to the state court of last
resort on at least three occasions. In Ex parte H awk, 321
U.S. 114, 116 (1944), the Court held that presentation of
claims in the form of an application for an extraordinary
writ did not constitute a fair opportunity to address the
claims. The holding in Ex parte Hawk was reaffirmed in
Pitchess v. Davis, 421 U.S. 482 (1975), another extraordi-

14

nary writ case. There, the Court focused upon the
extremely restricted extent of the state supreme court's
jurisdiction in the issuance of the writ, which jurisdiction
was limited to “questions of first impression and general
importance.” Jd. at 488 (quoting People v. Medina, 6
Cal.3d 484, 491, 492 P.2d 686, 690 (1972) (en banc)).
Because of this severely limited jurisdiction, the state
court of last resort would be barred from reviewing the
claims unless it also found that the issues were novel and

of public importance. Thus, the claims were not
exhausted.

Finally, this Court’s most recent comprehensive discus-
sion on the question of the required mode of presentation
_ to the state court was Picard v. Connor, 404 U.S. 270
(1971). There, the Court held that the comity-based
underpinnings of the exhaustion rule required not only
that the factual predicate for the habeas claims be pre-
sented to the state court, but also that the state court be
presented with the federal constitutional theory upon
which the claim was grounded. Jd. at 276-78. The Court
reasoned that “[i]f the exhaustion doctrine is to prevent
‘unnecessary conflict between the courts equally bound to
guard and protect rights served by the Constitution,’”
there must be a fair presentation of the claim in the state

court. /d. at 275-76 (quoting Ex parte Royall, 117 U.S. at
251).

Read together, these cases establish the principle that a
habeas claim has been exhausted if the claim has been
presented to the state court in terms of the same legal and
factual grounds as in the habeas petition, and in a posture

in which the state court may reasonably address the mer-
its of the claim.

15

B. Identification Of Federal Constitutional Theories To
State Court

A related matter concerns the specificity with which a
prisoner must identify the federal constitutional under-
pinnings of the claims in the state courts. This Court
considered this aspect of the exhaustion rule in Picard v.
Connor, 404 U.S. 270, a case in which the prisoner
claimed in the state courts that the indictment against
him was invalid, but contended in the habeas court that he
had been denied equal protection under the Fourteenth
Amendment. This Court held that the two claims were so
different that the state courts had not been given a fair
opportunity to address the latter claim. Id. at 274-77.
However, the Court recognized that “there are instances
in which ‘the ultimate question for disposition’ will be the
same despite variations in the legal theory or factual
allegations urged in its support.” Jd. at 277 (quoting
United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th
Cir. 1966)). Although the Court found that a different
legal theory had been advanced in the state courts, It was
careful to point out that strict standards of pleading will
not be enforced:

e do not imply that respondent could have raised
bed equal sstaalien claim only by citing | book and
verse on the federal constitution.” We simply hold
that the substance of a federal habeas corpus claim
must first be presented to the state courts. The claim
that an indictment is invalid is not the swbstantial
equivalent of a claim that it results in an unconstitu-
tional discrimination.

Id. at 278 (citations omitted) (emphasis added).

Following Picard, the Courts of Appeals have fleshed
out Picard’s functional or “substantial equivalency and
have reached a consensus as to the means by which the

16

question may be addressed. For example, the Third Cir-
cuit has stated that the “method of analysis” asserted in
the habeas court must be such that the state court had
notice of the nature of the federal right that the petitioner
contends was violated. Bisaccia v. Attorney General of
New Jersey, 623 F.2d 307, 310 (3d Cir. 1980).12 The habeas
court may, of course, find exhaustion when briefs and
opinions in the state court record include citations to
specific constitutional provisions. Daye v. Attorney Gen-
eral of New York, 696 F.2d 186, 192 (2d Cir. 1982) (en
banc). However, there are a number of other ways that a
prisoner may alert the state court to the nature of his
federal constitutional claim. Jd. at 192-94.

Reliance in the state court upon specific federal consti-
tutional decisions provides notice of the underlying
nature of the claim. See Brown v. Cuyler, 669 F.2d 155,
159 (3d Cir. 1982). Similarly, a prisoner’s claim that he was
deprived of a federally guaranteed right, without a spe-
cific constitutional or decisional citation, may be suffi-
cient. See Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979).
Of course, the more specific the description of the alleged
violation, the more easily the state court will be alerted to
the nature of the claim. Daye v. Attorney General of New
York, 696 F.2d at 193.

Under the appropriate circumstances, a claim that a
petitioner has been denied a “fair trial” will be sufficient to
alert the state court to a claim of a denial of the petitioner's
federal due process rights. Bisaccia v. Attorney General

12 In order to determine whether the state courts were presented
with the “substantial equivalent” of the claims made in the federal
habeas petition, the habeas court should examine the pretrial, trial
and appellate briefs submitted to the state court. Picard v. Connor,
404 U.S. at 273-74.

17

of New Jersey, 623 F.2d at 310. The concept of “fairness”
comprises a broad spectrum of procedural rights and pro-
tections, some of which are of statutory or decisional
origin, while others are based on a variety of constitu-
tional provisions, including the due process clause. In
order to determine whether the claimed deprivation of a
“fair trial” was sufficient to alert the state court to a
claimed violation of the due process clause, the federal
habeas court must look to the nature of the facts and the
analysis underlying the claim.

In Bisaccia v. Attorney General of New Jersey, the
Third Circuit held that the appropriate inquiry is whether
“the ‘method of analysis’ asserted in the federal courts
was readily available to the state court.” 623 F.2d at 310
(quoting Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.
1976)). This approach focuses on the facts of the case and
on whether a method of analysis consistent with the fed-
eral constitutional considerations was apparent in state
court. Bisaccia v. Attorney General of New Jersey, 623
F 2d at 311. In Bisaccia, the petitioner contended in his
federal habeas petition that he had been denied his federal
due process rights based on the admission of evidence of a
guilty plea by a testifying conspirator. The New J ersey
Supreme Court had examined the issue by “pursu([ing] a
method of analysis consistent with Fourteenth Amend-
ment due process determinations.” /d. at 311. The claim
was thus exhausted.

A similar approach was established by the Second Cir-
cuit in Daye v. Attorney General of New York, a case in
which the petitioner contended in his federal habeas peti-
tion that he was denied his federal due process rights
because of the bias of the trial judge. 969 F.2d at 188-189.
Although he had claimed a deprivation of a “fair trial” on
the same facts in the state courts, the Second Circuit

18

found the “factual matrix” underlying the claim to be “well
within the mainstream of due process adjudication.” Jd. at
193 (quoting Johnson v. Metz, 609 F.2d 1052, 1057 (2d Cir.
1979) (Newman, J., concurring)).

The “substantial equivalency” standard established by
this Court in Picard has resulted in a practical standard
by which the lower courts may consider the issue in a
consistent and fair manner.

C. The Third Circuit’s Decisions In Chaussard v. Fulcomer
And In This Case

In Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert.
denied, 108 S.Ct. 189 (1987), !3 the prosecution contended
that of four closely related habeas claims, two had not
been raised in the Pennsylvania Superior Court, although
all four were apparently raised in the Supreme Court of
Pennsylvania. Whether, in fact, the two claims had been
defaulted in the Pennsylvania Superior Court is not
addressed in Chaussard. The default is only referred to in
the court’s description of the prosecution's contentions.
The prosecution argued that the Supreme Court of Penn-
sylvania did not have a “realistic opportunity” to address
the two defaulted claims because claims not raised at all
earlier stages of the proceedings are deemed waived and
are non-justiciable before the Supreme Court of Pennsy]-
vania. Jd. at 928. Although the Third Circuit discussed
several related exhaustion issues, it did not discuss the
contention that the default in the Superior Court pre-
cluded review by the Supreme Court of Pennsylvania and

'3The Third Circuit in Chaussard held the habeas claims to be
exhausted but ruled against the prisoner on the merits. The prisoner
sought review before this Court on the merits of his claims but his
Petition for a Writ of Certiorari was denied.

19

simply stated that the prisoner had “satisfied the exhaus-
tion requirement.” Jd. at 928.14

The Commonwealth argues that Chaussard stands for
the proposition that defaulted claims merely presented to
the state court of last resort are nonetheless exhausted.
The Commonwealth posits this broad interpretation of
Chaussard, which it labels a “mere presentation” rule, as
the principal issue before this Court and asks this Court
to hold that this interpretation is not consistent with
precedent and policy. If this “mere presentation” rule is
not valid, the Commonwealth argues, it should prevail in
this case.

The Commonwealth’s broad interpretation of Chau-
ssard will not be defended by Mr. Peoples, although rea-
sonable minds may differ as to whether the Third Circuit
held that defaulted claims are nonetheless exhausted. As
is demonstrated below, Mr. Peoples should prevail
because, although the state record is not tidy, all habeas
claims were fairly presented to the Supreme Court of
Pennsylvania.

The Third Circuit’s record on the issue is made clear by
its post-Chaussard decision in O’Halloran v. Ryan, 835
F.2d 506 (3d Cir. 1987). In O’Halloran, a claim arguably
defaulted in the trial court was raised in the Superior
Court of Pennsylvania in terms of ineffective assistance of
counsel and the Supreme Court of Pennsylvania denied
discretionary review. On habeas review, the Third Circuit
found the claims to be unexhausted. If the O’Halloran
panel had shared the Commonwealth's broad reading of

14 Based upon a review of the record in Chaussard, undersigned
counsel informed the Third Circuit at oral argument that at least one
of the claims appeared to have been defaulted.

20

Chaussard, the claims would have been held to be
exhausted because they were, even if earlier defaulted,
“presented” to the Supreme Court of Pennsylvania in a
petition for discretionary review.

The prisoner in O’Halloran argued, as does Mr. Peo-
ples, that his claims were justiciable on direct appeal to
the Supreme Court of Pennsylvania because the defaults
were the result of the ineffectiveness of prior counsel.
However, relying upon the same outdated and overruled
Superior Court precedent as that cited by the Common-
wealth in this appeal, Commonwealth v. Cook, 230 Pa.
Super. 283, 320 A.2d 461 (1974), the Third Circuit held
that the lack of a record in the state appellate courts
precluded review on that appeal. Thus the O’Halloran
court ruled the prisoner would be required to seek collat-
eral review under the Pennsylvania Post Conviction
Hearing Act. 835 F.2d at 509-510.

While O’Halloran demonstrates that the Third Circuit
did not adopt a “mere presentation” rule in Chaussard, it
also reflects the same incorrect and outdated view of

Pennsylvania law as that advanced by the Commonwealth
in this case.

II. Applicabie Procedural Rules Of The Commonwealth Of
Pennsylvania

A. Ineffectiveness Of Control Exception To The Penn-
sylvania Default Rule

It is important to recognize the difference between the
manner in which the federal courts and the courts of
Pennsylvania may review newly raised claims on direct
appeal. In general, in both the federal and the Pennsyl-
vania court systems, an appellate court will not review a
claim raised for the first time on appeal or defaulted at an
earlier stage of the proceedings. See, e.g., United States

21

v. Schreiber, 599 F.2d 534, 538 (3d Cir.), cert. denied, 444
U.S. 843 (1979). Pennsylvania vigorously applies a waiver
rule to the preservation of claims for appellate review.
See, e.g., Commonwealth v. Holmes, 315 Pa. Super. 256,
461 A.2d 1268 (1983)(post trial motion alleging insuffi-
cient evidence preserves no claim; even a claim of insuffi-
ciency of evidence is waived); Commonwealth v. Gravely,
486 Pa. 194, 404 A.2d 1296 (1979) (claims must be in the
post trial motion itself; claims made in the brief support-
ing the motion are deemed waived).

Consistent with the strict enforcement of this waiver
policy is Pennsylvania's rule that claims that prior counsel
was ineffective are deemed waived if they are not raised at
the earliest stage of the proceedings at which the
allegedly ineffective attorney no longer represents the
defendant. Thus, Pennsylvania courts will invoke this
rule to deny review, even on collateral attack, of ineffec-
tiveness claims not raised at the earliest stage at which
the allegedly ineffective lawyer no longer represented the
defendant. See Commonwealth v. Strachan, 460 Pa. 407,
333 A 2d 790 (1975); Commonwealth v. Dancer, 460 Pa.
95, 331 A.2d 435 (1975); Commonwealth v. Smallwood,
465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Sea-
christ, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth
v. Wallace, 495 Pa. 295, 483 A.2d 856 (1981).

This line of decisions finding waiver of ineffectiveness
claims when they are raised by new counsel on direct
appeal is onerous and, at times, harsh. However, there is,
as a consequence of this waiver rule, a means by which a
claim may be raised, even if earlier defaulted, where the
failure to raise and/or preserve the claim is alleged to be
due to the ineffectiveness of prior counsel. If the Pennsyl-
vania courts will deem a defendant to have waived ineffec-
tiveness claims when the claims are not raised buy new

22

—_ it follows that ineffectiveness claims, if they are
= . eet are ——. That is, since the

laims raised or eemed wai
—— courts of the Commonwealth of Sen en
e jurisdiction to review the newly raised claims on

—- = See Commonwealth v. Carter, 463 Pa. 310
Bad A-2d 846 (1975); Commonwealth v. Hubbard, 472 Pa,
, 276-77 n.6, 372 A.2d 687, 695 n.6 (197),

There are at least four rationales in Pennsylvania case

law for the review of ineffecti laims raised
direct appeal for the first time. ayy ~

First, in Commonwealth v D
. Dessus, 423 Pa.
A.2d 188 (1966), the Supreme Court of * nth dae

= att ~~ wag — _— exception to the waiver
essus, t
vania expressly held, e Supreme Court of Pennsyl-

defaulted ineffecti
frock a claims could be raised on appeal

To require appellant to rai is i
ant to raise this issue below, j
pe maw appellant's trial counsel to challenge his pa
me ~y 4 — OW nepost-trial motions, would
sented in the appeal nunc ame hone ay sel other

437 Pa. at 443, 264 A.2d at 400.

23

Second, in Commonwealth v. Faison, and in Common-
wealth v. Carter, the Supreme Court of Pennsylvania
reasoned that it would be unrealistic, pointless, as well as
demeaning io counsel, to expect counsel to raise his or her
own ineffectiveness as a claim. 463 Pa. at 314, 344 A.2d at
848. See also Commonwealth v. Smith, 494 Pa. 294, 433

A.2d 1349 (1981). 1°

Third, if a failure to raise the claim as soon as the
allegedly ineffective counsel no longer represents the
defendant will be deemed a waiver, it logically follows that
the claim, if raised, is justiciable. Commonwealth v. Hub-
bard, 472 Pa. at 276-77 n.6, 372 A.2d at 695 n.6.

Fourth, judicial economy is advanced if the appellate
court, often while considering otherwise non-defaulted
claims, can simultaneously address ineffectiveness
claims. This rationale is illustrated most pointedly in the
Pennsylvania cases which permit an attorney to raise his
or her own ineffectiveness for the first time on appeal if
the error is apparent on the record. See Commonwealth
v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth
v. Serianni, 337 Pa. Super. 309, 313, 486 A.2d 1349, 1351
(1984). Despite judicial statements that it would be
unseemly and demeaning to require counsel to argue his
or her own ineffectiveness, “judicial economy is promoted
since the appeal may be disposed of without the further
procedural steps required for appointment of new coun-
sel.” Commonwealth v. Glaze, 366 Pa. Super. 517, 521,

531 A.2d 796, 798 (1987).

15 Nonetheless, the Pennsylvania courts will even permit a lawyer
to raise his or her own ineffectiveness as a new claim on direct appeal
if the error is apparent on the record. Commonwealth v. Fox, 476 Pa.

475, 383 A.2d 199 (1978).

24

Where ineffectiveness claims are raised in the Pennsy]-
vania appellate courts for the first time on direct appeal,
the Supreme Court of Pennsylvania has recognized that
the appellate court has three choices for the resolution of
the claims:

The problem in this case, as in most cases where the
claim of ineffective assistance of counsel is raised on
direct appeal, is that we have before us no record of
any hearing at which is delineated trial counsel's
reasons for taking the steps later challenged. Where
the record on appeal clearly shows that there could
have been no reasonable basis for a damaging deci-
sion or omission by trial counsel, then of course, the
oe must be vacated and appropriate relief,
such as allowing the filing of post trial motions or the
ordering of a new trial, granted. Where, on the other
hand, it is impossible to tell from the record whether
or not the action of trial counsel could have had a
rational basis, the appellate court will vacate the
judgment, at least for the time being, and remand for
an evidentiary hearing at which trial counsel may
state his reasons for having chosen the course of
action taken. Neither of these remedies, however is
appropriate if on the record it is apparent that the
actions claimed to constitute ineffectiveness were in
fact within the realm of trial tactics or strategy. A
finding of ineffectiveness of counsel cannot be made

unless we con(clude] that the alternatives not
chosen offered a potential for success substantially
greater than the tactics actually utilized.”

Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847,
849 (1977) (ineffectiveness claims raised an direct appeal;
court addresses merits and affirms convictions)(footnotes
and citations omitted).

Where the claim is made that trial or earlier appellate
counsel has been ineffective and the Supreme Court or
Superior Court of Pennsylvania can evaluate the claim on

25

the basis of the existing record, the courts can address the
merits of the claim and affirm the conviction. See Com-
monwealth v. Carter, 463 Pa. 310, 344 A.2d 846; Com-
monwealth v. Turner, 469 Pa. 319, 365 A.2d 847;
Commonwealth v. Johnson, 479 Pa. 60, 287 A.2d 834
(1978)(court affirms conviction, reaching the merits of an
ineffectiveness claim); Commonwealth v. Tessel, 347 Pa.
Super. 37, 53, 500 A.2d 144, 152 (1985) (new counsel raises
ineffectiveness claim for the first time on appeal; affirming
on the merits, the court states, “(t]he claim is . . . prop-
erly before us’).

Where the merits of the ineffectiveness claim, raised
for the first time on appeal, are not apparent from the
record, the Pennsylvania appellate courts can remand the
case to the trial court for the purpose of a hearing on the
merits. See Commonwealth v. Murphy, 316 Pa. Super.
178, 182, 462 A.2d 853, 855 (1983)(remand to Court of
Common Pleas for hearing and a decision); Common-
wealth v. Jellots, 277 Pa. Super. 358, 363, 419 A.2d 1184,
1187 (1980)(same). There is no requirement that a collat-
eral attack be mounted under the Post Conviction Hear-
ing Act.

The case of Commonwealth v. Hubbard, 472 Pa. 259,
372 A.2d 687 (1977), appeal after remand, 485 Pa. 353, 402
A.2d 999 (1979), is instructive and demonstrates the man-
ner in which the Supreme Court of Pennsylvania rou-
tinely reviews claims such as those asserted by Mr.
Peoples. Hubbard was convicted of murder in the Court of
Common Pleas and on direct appeal contended that post-
trial counsel! was ineffective because in the post verdict

i6 Hubbard was represented at trial and for the purpose of post
verdict motions by retained counsel (trial counsel), a public defender
who filed supplemental post verdict motions (post-trial counsel), and
on direct appeal by another public defender (appellate counsel).

26

motions he failed to raise a claim of ineffective assistance
of trial counsel based on the latter’s failure to object to
certain prejudicial statements made in the prosecutor's
closing. After finding the contention to be of “arguable
merit,” the Supreme Court vacated the judgment of sen-
tence and remanded the case for an evidentiary hearing.
485 Pa. at 356, 402 A.2d 1000. Upon completion of the
hearing and entry of an adjudication by the trial court, the
matter was placed directly before the Pennsylvania
Supreme Court, which affirmed the conviction. 485 Pa. at
358, 402 A.2d at 1000-01.

Finally, when the merits of a claim of ineffective assist-
ance of counsel are susceptible to review on direct appeal,
the Supreme Court can address the merits and reverse
the judgment of sentence. See Commonwealth v. Morin,
477 Pa. 80, 383 A.2d 832 (1978). In Morin, the defendant’s
first counsel failed to raise the issue of the defendant’s
waiver of a jury trial in post verdict motions and before
the Superior Court. New counsel raised the issue in terms
of ineffective assistance of counsel before the Supreme
Court of Pennsylvania, claiming the failure to raise the
claim was due to earlier counsel’s ineffectiveness. Reject-
ing the prosecution’s argument that the case should be
remanded for a hearing on the matter, the Supreme Court
of Pennsylvania addressed the merits of the claim,
reversed the judgment of sentence and remanded the case
for a new trial. 477 Pa. at 88, 383 A.2d at 835.

Similarly, in Commonwealth v. Fassett, 496 Pa. 529,
437 A.2d 1166 (1981), the defendant was represented by
new counsel in the Supreme Court of Pennsylvania and
raised for the first time the contention that trial counsel
was ineffective for failing to move for the suppression of
the fruits of a vehicle stop. The failure of prior counsel to
raise and preserve the issue was alleged to be due to

27

earlier counsel’s ineffectiveness. With a citation to Com-
monwealth v. Hubbard, the Supreme Court stated that
the matter was properly before it and, finding earlier
counsel ineffective, reversed and remanded for a new
trial. 496 Pa. at 532 n.2, 5384, 437 A.2d at 1168 n.2, 1169.

This Court need go no further than the record in this
case to understand the application of the ineffectiveness
exception to the waiver rule. Mr. Peoples was represented
by new counsel in the Superior Court and new counsel
argued, for the first time, that trial counsel was ineffec-
tive in several specifics (J.A. at 27, 39-43). In its Memoran-
dum Opinion, the Superior Court noted that since new
counsel had been appointed, the claims were “reviewable
even though they had not been previously raised.” (J: A. at
47). Accordingly, the court addressed the merits of the
claims (Jd. ).

B. The Commonwealth’s Arguments

The Commonwealth makes several arguments con-
cerning Pennsylvania law which are incorrect. First, cit-
ing a 1974 Superior Court case, Commonwealth v. Cook,
230 Pa. Super. 283, 320 A.2d 461 (1974), and ignoring the
above-cited cases from the Supreme Court Pennsylvania,
the Commonwealth argues that a claim of ineffectiveness
of prior counsel “will not be decided on direct appeal
unless clear and irrefutable proof of the issue appears on
the face of the record.” Petitioner's Brief at 11. Although
Cook does so state, it has been plainly overruled by subse-
quent decisions of the Supreme Court of Pennsylvania.
Citing Commonwealth v. Davis, 499 Pa. 282, 453 A.2d 309
(1982), the Commonwealth acknowledges that claims
raised in terms of ineffectiveness that require some fur-
ther record may be the subject of a remand, 499 Pa.
283-84, 453 A.2d at 310, but the Commonwealth argues

28

that the claims should be presented in a collateral attack
on the conviction. However, as Hubbard made clear, the
Pennsylvania appellate courts may remand for further
hearings and the parties may then bring the matter back
to the Supreme Court for review. There is no known
statement in the decisions of the Pennsylvania appeilate
courts establishing a rule that a collateral attack is
required or preferred in this context, or even establishing
a standard by which the Pennsylvania courts will deter-
mine whether to review a previously defaulted claim on
direct appeal. Thus, the Pennsylvania courts have
reserved the sole and unrestricted discretion to review
such claims on direct appeal, or to decline to do so, rather
than requiring a collateral attack on the conviction.

The central question raised in this case is whether
presentation of otherwise defaulted claims which are
within Pennslyvania’s ineffectiveness of counsel exception
to its default rule constitutes a “fair opportunity” to
review the claim, or is more akin to the extraordinary
writs in Ex parte Hawk and Pitchess v. Davis. Based on
the well established and documented procedures in the
Pennsylvania courts, and the policies and principles
underpinning the exhaustion rule, the claims so pre-
sented are plainly exhausted. At least four reasons sup-
port this conclusion.

First, Pennsylvania’s review of claims under this rule is
routine, well-established and in the ordinary course of the
day-to-day administration of justice in the courts of the
Commonwealth. Unlike the writs in Ex parte Hawk and

Pitchess v. Davis, there is nothing extraordinary about
such review.

Second, review on direct appeal under this rule does not
require compliance with any additional burden or stan-

29

dard beyond that which would be applied on collateral
review in the state courts. To the contrary, and unlike the
situation Ex parte Hawk and Pitchess v. Das, if the
Supreme Court of Pennsylvania declines to review the
claims on direct appeal, the prisoner would have the same
burdens on collateral attack in terms of demonstrating a
substantive error and the ineffectiveness of counsel in
failing to preserve the claim. On both direct appeal and
state collateral review, he would be required to demon-
strate that any default was due to the ineffectiveness of
counsel.

Third, Pennsylvania’s rule is based, in part, on notions
of judicial economy. To require a prisoner to mount a state
collateral attack after review is denied by the Supreme
Court of Pennsylvania would cause a needless waste of
Pennsylvania's judicial resources. Since Pennsylvania law
makes it clear the Pennsylvania courts do consider inef-
fectiveness claims on direct appeal, an exhaustion rule
requiring a state collateral attack does violence to Penn-
sylvania’s policy of judicial economy and renders wasted
any resources already expended by the courts of the
Commonwealth in their consideration of the claims on
direct review.

Fourth, notions of comity are advanced by finding
exhaustion in this case. Pennsylvania is otherwise a rela-
tively waiver-oriented jurisdiction, but, after due deliber-
ation and through a normal common law process of
evaluation, has expressly announced a rule permitting
review of otherwise defaulted claims. To hold such claims
are not exhausted is to demean the prerogative of the
Supreme Court of Pennsylvania to develop its own legal
principles by rendering Pennsylvania's rule a nullity.

There is an irony to the Commonwealth's characteriza-
tion of the mischief that would allegedly result if this

30

Court finds exhaustion for claims defaulted but plainly
within Pennsylvania’s ineffectiveness of counsel exception
to its waiver rule. However, a holding that such claims are
unexhausted would do far more to demean the Pennsyl-
vania judiciary and to wreak havoc with its carefully bal-
anced and well-considered system for adjudicating
ineffectiveness claims. These ineffectiveness claims are
held justiciable on direct appeal in order to advance judi-
cial economy and as a consequence of Pennsylvania's rule
that they are waived if not raised on direct appeal. To hold
now that such claims must be presented through a collat-
eral attack, as the Commonwealth urges, is to cause the
same waste of judicial resources which caused the Penn-
sylvania courts to recognize the exception to the waiver
rule in the first instance. More seriously, if this Court
were to require collateral review, Pennsylvania’s rule find-
ing waiver when ineffectiveness claims are not raised on
direct appeal will no longer be valid or enforceable since
the waiver rule established that ineffectiveness claims
raised by new counsel are justiciable. The damage to
federal/state comity from such interference in the admin-
istration of justice in the Commonwealth of Pennsylvania
would be immense.

Most importantly, the ultimate basis for the comity-
based exhaustion rule—that state and federal courts are
equally bound to enforce the federal constitution—is
advanced by holding these claims to be exhausted,
because the Supreme Court of Pennsylvania had an
opportunity to review the claims pursuant to and in accor-
dance with its own pronouncements.

The Commonwealth contends that the pro se Petition
for Allowance of Appeal may not be considered in deter-
mining whether the claims were exhausted. The pro se
Petition was a timely-filed petition for substantive review

31

and the appointment of counsel. It complied with the
applicable rules of procedure as to the contents of a peti-
tion for allowance of appeal and expressly requested sub-
stantive review and the appointment of counsel.

The Commonwealth contends that the pro se Petition
may not be considered to be a request for substantive
review but should only be considered a request for the
appointment of counsel because that is required under
some “standard practice” in Pennsylvania. This argument
is meritless, because there is no statement in the statutes,
rules or decisional authority to the effect that pro se
petitions for allowance of appeal may not be considered as
a request for substantive review. Petitioner's Brief at 17.
Any claim of a “standard practice” is completely unsup-
ported and is inconsistent with the rules and statutes of
Pennsylvania. The pro se Petition plainly requested sub-
stantive review and, by way of separate relief, asked for
appointment of counsel.

The pro se Petition for Allowance of Appeal cited the
appropriate statute and rule of court in its opening para-
graph (J.A. at 49).!7 The title of the document plainly
requests two forms of relief, substantive review and
appointment of counsel (/d.) and the relief requested con-
sists of the following:

WHEREFORE, for all of the foregoing reasons your
Honorable Supreme Court should grant the pro se
petition of Michael a for allowance to appeal
the constitutional and Statutory errors of the lower

17 The pro se Petition properly cited Rule 1113 of the Pennsylvania
Rules of Appellate Procedure but cited “42 Pa. C.S.A. Section 524” as
the basis for discretionary review. The reference to “Section 524 is
plainly a typographical error since Section 724 of the Pennsylvania
Judicial Code grants discretionary jurisdiction.

32

court and the Superior court and to order appoint-

~ no of a can raise and argue ow
e assistance of former trial, - i

tn engin post-verdict and

(J.A. at 58-59)(emphasis added).

The Supreme Court of Pennsylvania did not rule on the
merits of the pro se petition, but rather appointed coun-
sel. The fact remains, however, that the court could have
undertaken a review of the claims in the pro se Petition
7 ~ do had the requisite opportunity to address the

III. Application Of Exhaustion Principles To Respondent’s
Claims

A. Admission Of Prior Convictions

The argument that he was improperly cross-examined
on his prior convictions was raised in Mr. Peoples’ post-
trial motions (J.A. at 12), and was raised in his Superior
Court brief (J.A. at 28, 34-37). It was raised in the coun-
seled Petition for Allowance of Appeal (J.A. at 66-67), and
it was raised as well in the pro se Petition for Allowance of
Appeal (J.A. at 53). In the pro se Petition, Mr. Peoples
argued that he was denied a “fair trial” and cited the
decisions of the Supreme Court of Pennsylvania in Com-
monwealth v. Schmidt, 317 Pa.Super. 241, 463 A.2d 1175

(1983) and Commonwealth v. Bighum. 452
A.2d 255 (1973). seccaicaeia heated

The federal habeas petition alleges a “due process 14th
amendment” violation based upon the use of two prior
robbery convictions and a conviction for retail theft to
impeach Mr. Peoples’ credibility (J.A. at 73).18 The Com-

‘8 The claim is also characterized as being based on violation of a

State statute which prohibits use of pri icti
Po. C5 beni. prior convictions (J.A. at 73). See

33

monwealth argues that the legal basis of this claim was
not presented to the state courts! since it was raised in
terms of the ineffective assistance of coun~el under the
Sixth Amendment in both the pro *? Petition for
Allowance of Appeal and the counseled Petition for
Allowance of Appeal (Petitioner’s Brief, p. 12). In addi-
tion, the Commonwealth contends that the claim was
unreviewable by the state court due to the lack of a record
(Petitioner's Brief, p. 13).

The claim based on the impeachment use of Mr. Peoples’
prior convictions was raised in the pro se Petition in terms
of ineffective assistance of counsel, prosecutorial miscon-
duct, and in terms of substantive error by the trial court
and the Superior Court,2° causing the deprivation of Mr.
Peoples right to “receive a fair trial” (J.A. at 53). It was
also raised in the counseled Petition for Allowance of
Appeal (J.A. at 66-67). Although Mr. Peopies also relied
on the state statute regulating use of prior convictions, it
is manifestly clear that the federal due process clause was
the basis for review for at least four reasons. First, in his
pro se Petition, Mr. Peoples referred to the deprivation of
a “fair trial” caused by the use of the convictions. Under

19The Commonwealth also contends that the evidence was not
objected to at trial. If this is to suggest that the claim was not
preserved at trial because an objection was not made while Mr.
Peoples was being cross-examined, it is meritless. The question of the
impeachment use of convictions is the subject of a separate hearing in
Pennsylvania, known as a Bighum hearing, convened before the
defendant testifies. Such a hearing was held in this case (n.t. Trial
259, 269). Moreover, there is no requirement of a separate objection at
the time of the testimony in order to preserve the claim.

20 The Pro Se Petition alleged that the “trial court and Superior
Court committed error by upholding the unlawful ruling by violating,
Commonwealth v. Bighum, 452 Pa. 554” (J.A. at 53).

34

the “substantial equivalency” approach adopted in Pic-
ard, the Supreme Court of Pennsylvania was plainly
aware that the petitioner asserted that the overall impact
of the admission of such evidence was to taint the truth-

finding function of the trial, a claim sounding in due pro-
cess.

Second, Mr. Peoples cited the decision of the Supreme
Court of Pennsylvania in Commonwealth v. Bighum, 452
Pa. 554, 307 A.2d 255 (1973), a case in which the Court
established guidelines for the use of prior convictions to
impeach a testifying criminal defendant (J.A. at 53). The
procedure for determining whether a testifying defend-
ant may be impeached is known in Pennsylvania as a
Bighum hearing, and such a hearing was held in this case
(n.t. Trial at 269). A citation or reference to Bighum alone
alerted the Supreme Court of Pennsylvania to a claim of a
due process violation. In Bighum, a criminal defendant
alleged a due process violation based upon the trial court’s
determination that prior convictions were admissible. 452
Pa. at 562, 307 A.2d at 260. The Supreme Court of Penn-
sylvania rejected the claim, relying upon the due process
analysis of this Court in Spencer v. Texas, 385 U.S. 554,
reh’g denied, 386 U.S. 969 (1967)(due process challenge to
Texas redicivist statute permitting admission of prior
convictions during guilt phase). A citation or reference to
Bighum is thus tantamount to and is understood to be an
express invocation of the due process clause.

Third, the history of litigation before the Supreme
Court of Pennsylvania concerning the issue of the
admissibility of prior convictions of testifying criminal
defendants alone would alert the Supreme Court to the
basis for the claim. Although decisions have also dis-
cussed the state statute regulating such use, considera-
tion of the due process implications and the impact on the

35

fairness of the trial is a consistent theme. See
oe v. Moore, 246 Pa. Super. 163, 369 A.2d
862 (1977) (Bighum cited and construed to be based on
due process analysis); Commonwealth v. Butler, 405 Pa.
36, 173 A.2d 468 (1961) (due process); Commonwealth v.
Miller, 465 Pa. 458, 350 A.2d 855 (1976) (citation to
Bighum); Commonwealth v. Peterman, 430 Pa. 627 244
A.2d 723 (1968) (due process clause not expressly cited,
but impact on overall fairness of the trial considered).

Fourth, in the counseled Petition for a of
cited not only the state statute on
mene Peony and cited see ews Fs v. Schmidt, 317
Pa. Super. 241, 463 A.2d 1175 (1983) (construing the
statute on impeachment use of convictions), but also cited
Commonwealth v. Moore, discussed supra, a case specifi-
cally addressing due process considerations and citing
Bighum (J.A. at 64-68).

The Commonwealth's contention that the claim is phra-
sed in the state courts only in terms of ineffective assist-
ance of counsel and prosecutorial misconduct is similarly
unavailing. The reference to “prosecutorial misconduct
in the pro se Petition is not an unexpected characteriza-
tion of the issue by a lay petitioner since it was the
prosecutor who impeached Mr. Peoples and argued the
convictions to the jury. However, Mr. Peoples did not limit
his characterizations to those phrases. He further argued
as follows in his pro se Petition:

The trial court and Superior Court committed error

upholding the unlawful ruling by violating, Com-
oy eecealth : Bighum . . . and?! allowing the Com-

21 The quoted sentence also included a reference to a deprivation of
Mr. Peoples’ “Sixth Amendment right” to present his “only mean-
ingful defense.” (J.A. at 53).

36

monwealth to use evidence of unrelated prior
robbery and theft criminal convictions before the
jury to discredit defendant's trial testimony.

(J.A. at 53)(emphasis added)

Finally, the Commonwealth argues that the lack of a
record precluded the Supreme Court from actually con-
sidering the issue (Petitioner's Brief, p. 13). Although the
Commonwealth concedes that Mr. Peoples was obligated
to raise the claim at that stage, it argues that a petition
under the Pennsylvania Post Conviction Relief Act was
required.*2 This argument is meritless since a record was
made as to the claim based on the improper admission of
the prior convictions. The claim was made in the Post
Verdict Motions (J.A. at 12) and was addressed in the trial
court's post-trial opinion (discussion of “Bighum hearing”
convened before the defense opened its case) (J.A. at
21-22). It was addressed on appeal in the Superior Court’s
brief (relying on Bighum) (J.A. 28, 34-37), in the Superior
Court’s Memorandum Opinion (J.A. at 46), in the pro se
Petition for Allowance of Appeal (J.A. at 53), and in the
counseled Petition for Allowance of Appeal (J.A. at
66-67).23 Moreover, there is no requirement that a record
be made before the Supreme Court of Pennsylvania may
consider such a claim.

Accordingly, the claim of a due process violation based
on the impeachment use of Mr. Peoples’ prior convictions

*2 42 Pa. C.S. § 9541 et seq.

3 In the counseled Petition for Allowance of Appeal, counsel may
be read to posture this argument in terms of ineffective assistance of
counsel and to request a remand to make a record (J.A. at 66-68). This
assertion by counsel was erroneous and is apparently the basis for the

district attorney's representation that no record exists to support the
claim.

37

was fairly presented to the Supreme Court of Pennsyl-
vania and is thus exhausted.

B. Deprivation Of A Non-Jury Trial

The claim that he was unconstitutionally deprived of a
non-jury trial was not raised in the Superior Court Brief
(J.A. at 26-43). Although the issue was not raised in the
counseled Petition for Allowance of Appeal (J.A. at 64-68),
the claim of a due process and equal protection violation
on the basis of the denial was amply and precisely raised
in the pro se Petition for Allowance of Appeal (J.A. at
53-54).

In his federal habeas petition Mr. Peoples contended
that he was denied a non-jury trial, in violation of the due
process clause and the equal protection clause of the Four-
teenth Amendment (J.A. at 74). In his pro se Petition for
Allowance of Appeal, this claim was raised in terms of his
“Federal and State constitutional rights to equal protec-
tion and Due Process of the laws under the Fourteenth
Amendment of the United States constitution.” (J.A. at
53).

The Commonwealth contends that the claim of an equal
protection and due process violation was waived and was
not reviewable by the Supreme Court since the claim was
not made in Mr. Peoples’ Post Verdict Motions or in the
Superior Court Brief. Even if Mr. Peoples Superior Court
or trial counsel did not raise due process and equal protec-
tion arguments with sufficient specificity in the trial court
and the Superior Court, the claims were expressly made
in the pro se Petition for Allowance of Appeal in terms of
the due process and equal protection clauses (J.A. at 53).
It was specifically argued that the failure of previous
counsel to properly raise these claims constituted the
ineffective assistance of trial and appellate counsel (J.A.

38

at 50, 52, 53). Raised in this way, the claims were not
defaulted and were reviewable by the Supreme Court of
Pennsylvania on direct appeal.

C. Tainted Identification Procedures

The claim that improper identification procedures were
used was raised in Post Trial Motions (J.A. at 12), was
discussed in the Opinion denying his Post Trial Motions
(J.A. at 20-21), was asserted in the Superior Court Brief
(J.A. at 27, 29-34), and was discussed in the Superior
Court’s Memorandum Opinion (J.A. at 45). The issue was
not raised in the counseled Petition for Allowance of
Appeal (J.A. at 64-68), but was raised in explicit terms in
the pro se Petition for Allowance of Appeal (J.A. at 54-55).
Thus, the issue was properly placed before the Supreme
Court of Pennsylvania.

D. Ineffective Assistance Of Counsel

Mr. Peoples raises two claims in his habeas corpus
Petition as to the ineffectiveness of counsel (J. A. at 74-75):

a. Trial Counsel failed to seek suppression of
the fruits of the arrest (J.A. at 74).

This claim was not raised in Post Trial Motions (J.A.
11-13) and was not raised in the Superior Court Brief by
new counsel (J.A. at 41-43). It was raised in terms of the
ineffective assistance of appellate counsel in the coun-
selled Petition for Allowance of Appeal (J.A. at 67). The
failure of Superior Court Counsel to raise the claim was
alleged to constitute the ineffective assistance of counsel

(J.A. at 67). Thus, the claim was reviewable on direct
appeal by the Supreme Court of Pennsylvania.

39

b. Trial Counsel failed to object to evidence of a
change in Mr. Peop les hair alle —
ia deammaawreL ae 75)

This was not addressed in the Post Trial Motions, the
Superior Court Brief or the counseled Petition for
Allowance of Appeal. However, it was raised expressly
and explicitly, in terms of the ineffective assistance of trial
and appellate counsel, in the pro se Petition for Allowance
of Appeal (J.A. at 55-57). The failure of trial and Superior
Court counsel to properly preserve the claim was specifi-
cally alleged to constitute the ineffectiveness of counsel.
(J.A. at 50, 55) Thus, the claim was reviewable on direct
appeal by the Supreme Court of Pennsylvania.

CONCLUSION

For the foregoing reasons, it is respectfully requested
that the order of the Third Circuit Court of Appeals be
affirmed.

Respectfully submitted,

RoBert E. WELSH, JR.*
(Appointed by this Court)
Douglas A. Stuart
Montgomery, McCracken,
Walker & Rhoads

Three Parkway, 20th Floor
Philadelphia, PA 19102
(215) 563-0650

Attorneys for Respondent
*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0371%3A7. Public record. Not legal advice.