Petition for a Writ of Certiorari — Fisher v. City of New York

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ne Court, U.S,

- rr ED

IN THE MAR 8 1963

Supreme Court of the Unite States

JOHN F- DAVIS. CLERK

October Term, 1962

_ - WILLIAM J. BANMILLER, Warden

Eastern State Penitentiary of Pennsylvania,

” Petitioner

Vv.

ANTHONY SCOLERI, -

Respondent

PETITION FOR A WRIT OF CERTIORARI

‘ TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCYIT

Louis F. MCCABE

: Assistant District Attorney

ARLEN SPECTER Shaka Sys

Agsistant District Attorney

Chief, Litigation Division

F. EMMETT FITZPATRICK, JR.

sd First Assistant District Attorney

| JAMES C. €RUMLISH,.JR.

' District Attorney

: : Attorneys for Petitioner

‘Room 666, City Hall

Philadelphia 7, Pa.

THE LEGAL INTELLIGENCER, 10 S. 37TH ST., PHILA. 4

2, ‘

Fy [e4 e

TABLE OF CONTENTS Soa

: ? Page

ere . 7. - a

Opinions Below 2 no 1

Jurisdiction : | “® sqaure ge

Questions Presented é ‘2

Constitutional and Statutory Provisions Involved 3B

Statement of the Case * 3

Reasons: for Granting the Writ 6

I. The Judgment of the Court of Appeals Below ,

Improperly Set Aside the Judgment of the Su-

preme Court of Pefinsylvania, and-Decided the

¢ . , . . . ee

Matter in a Manner Not Consistent with Its

Own Ruling inthe Case of United Statesex rel.

Hermar’ Rucker v. David M. Myers 6

5 = , . . . % ‘

“IJ. Respondent Waived Hig Right to Assert. Lack

of Due Process ° _— 21

Ill. The Case Was Not Decided By the Court — ,

Which Heard Oral’ Argument 24

Conclusion Pi ae 27

Appendix “:A”—Section 701 of the Criminal Code of-

Pennsylvania, Act of June 24; 1939, P.L. 872 29

° v ; .

Appendix “B”—Opinions of the Courts Below i ae

ma 2 2.

s0)

‘Appendix “C’—Decision of the Court of Appeals

peperrss Corp. v. Goodman ard Thiese, 153 F. 2d 284

TABLE OF CASES CITED

| ; * Page>

Brown v. Allen, 344 U.S, 443, 73 &. Ct. 397 6

Butev. People of Hinois, 333 U.S. 640, 68S ‘i 763 6

‘Conaeawialiie’s, De Pofi, 362 Pa. 229 1949) ;

, 010 F.N. 8

Commonwealth v. Markle, 394 Pa. 34 (195815

“Commonwealth v. Parket, 284 Pa. 144 (19285 &, 17

Commonwealth v. Scoleri, 399 Pa. 110, Cert. den.. 364 -

U.S. 849 (1960) | eee. ee 6

3 Cir. 1946) * 23 .

U. 8. v. Gruber, 123 es 2d 307 (2 Cir. 1941) H 23

US. ex rel. Rucker Vv. Myers. 311 ms 2d 311, Cert. <_<

368 US, 868 (1961) 10

U.S. ex rel. Sinden v. iver, Warden, 276 F.2d 790

ee (3 Cir. 1960) | 20 - .

U.S. ex rel. Thompson v. Price, 258 F.2d 918 (1958)

9, 10, 19

OTHER AUTHORITIES CITED

Rules of the United States Court of Appeals for the

Third Circuit — 26, 27

; a

Site

e 5 au : |

a :

a. IN THE aie

Supreme Court of the United States

yo No. |

October Term, 1962

Saeaanbeciess Cn

‘ ; : WILLIAM J.BAN MILLER, Warden

_ Bastern State. Penitentiary of “Pennsylvania,

z ; Petitioner

ANTHONY, SCOLERL.

e » Respondent

PETITION FORA WRIT OF CERFIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD Te ae

—_—_——_————

P °

° « gi é f

William J. Banmiller, Warden of the Eastern State

Penitentiary of Pennsylvania, prays that a writ of certior-

ari issue to review the judgment of the United States Court

of Appeals for the Phird Circuit, entered in the above en-

titled case’ on October. 10, 1962 - petition for rehearing

denied: December 11, 1962. 2

“2

OPINIONS BELOW :

The opinion of the District Court of the United States

for the Eagtern District of Pennsylvania has been reported

at 198 F.Supp. 872. It appears herein as Appendix B, p. 62.

The opinion of the Court.of Appeals for the Third Cir-

cuit, together with the dissent ing opinions of Circuit Judge

Kalodner, joined in by Circuit Judge Staley, and of Cireuit

] + i °

-<,

? 9 -

julige Hastie, has been caine at 310 F. 2d 720. It ayy

here as Appendix B, p. 30. Appended to the report, 310 F

2d at 736, is the per curiam opinion of the Court of Appeais,

denying the Petition for Rehearing. It appears here as Ap-

« e pendix B, p. 59. , .

The opinion of the Supreme Court of Pennsylvania.

affirming the verdict of guilty of murder in the first degree

returned with the penalty fixed at death, claimed to have

resulted from « denial to the respondent herein of his con-

stitutional rights of due process of law, is reported-in 399

Pa. 110, together with dissenting opinions. Certicrari de-

“nied, 364 U.S.°849!

-ULS.C. 125411) and

* + | SURIS DICTION

The judgment of the Court of Appeals fer the Third

Circuit, was entered and opinion filet? on October 10, 1962.

Petition for rehearing, timely filed, was denied and opinion:

filed December 11, 1962.

* The jurisdiction -of this Court is invoked under “2x

ule 1911, bi.

INS PRESENTED ,

I. Did the Court of Appeals for the Third Circuit

improperly invade the right of Pennsylvania to formulate -

~and administer its domestic law for the prosecution of

crimé by setting aside a ruling of the highest Court of tha:

State through habeas corpu-, and denouncing, as so funda-

mentally unjust as to cause the trial court to lose jurisdic.

fion, a procedure of introducing as part of the Common-

wealth’s case in chief evidence of prior unrelated.crimes of

defendant, a procedure which had been upheld ever since

imprisonment for life was introdaced as an alternative to

the death penalty, in the Supreme Court of Pennsvylvani:

and the Court of Apheals for the Third Circuit. and whie!

this Court _ declined to consider on certierari in 1

least ten cases nee ; Ag ee

’ 3 oe

o ?

Hl. Did respondent waive his right to complain agains:

the introduction. over o®ection, during the Commonwealth's

cause in ciget, of evidence of defendant's prior unrelated -

crimes of Violence, by tuking the st tind ‘which would have

permitted the Commonwealth: to introduce the same evi.

dence in rebuttal to attack his cred! ibility. and not only

admitting those crimes. hut ende ‘avorine to tufn them th

his advantage? af

Hl. Did the death before tinal disposition of the case

of Judge Goodrich, who had sat usa mePnber of the Court

in bane, and had, at post-trial conference, voted 'o sustali

the judement of the District Court in denving the petition

for writ of habeas corpus, thus breaking a four to four

stand-off, deprivé the thus diminis shed court of jurisdiction

to render judgment in the case? :

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. The #ourteenth Amendment to the @ onstitution of

the United States, Section Ts)... nor shall any state

deprive any persoffot life 2 2. without du process of Jaw.”

IH. The Act of the General Assem tbly of the C ero

wealth of] Pennsylvania, approved May 14, 1925, P.L. 7

as re-enneted in the Criminal ¢ ‘ude of Pennsylvania, the Ae,

of June 24, 1939, 872, Section 701 «Section 70] is printed

as Appendix “A.” page 29, infra). :

STATEMENT OF THE CASE

On August 28, 1958, at approXimately S340 p.m., two

dnen, armed and wearing stocking masks over their faces.

enteregi the small, corner “netions” store conducted jn South

Philadelphia by Maw Gordon, an elderly man. (P-1, pp. 57

D8, 65.) (P-L designates the typewritten transcript of the

ndtes of trial testimony, rulings and charge in the C ourt of

Over and Terminer of Phil: adelphia, which was offered in

evidence at the hearing in the United States Distriet Cour

for the Eastern Distriet of Pennsylvania. at page 21 of the

“;

typewritten transcript of those’ proceédings, which have

been certified in this proceeding. | :

Besides Max Gordon and his wife, there were preseni

their daughter Sheila, aged seventeen véurs and a friend,

Jack Dinerman. All were robbed: money Was taken from

the cash register. (P-1, ‘pp. 66. 88, 152.) During the

course of’ the robbery, gunfire opened. Jack Rinerman

saw‘ respondent in a squatting position, firing his gun in

the direction of a counter behind which was Max Gordon.

(P-1,.pp. 90, 91, 93). Sheila als@# saw respondent aiming

in the direction of the same counter. ‘P-1, pp. 150, 151.)

_Max.Gordon was shot three times and as 2 result of

his wounds died two hours luter. (P-1. p. 47.) One of the

robbers yas t ‘fatally wounded threugh 2 shot fired by Mas

Gordon. ” :

Other witnes-es identified respondent as he fled from

the scene. | P-1, pp. IS4, 234-5, 261-2, 2640, |

tespondent was captured in Kansas City, Missouri,

September 19, 1958, armed.

e The judgmenc of the Supreme Court of Pennsylvania,

upholding the judgment of sentence of death of the Court

of Over and Terminer is reported at 399 Pa. 110, ;

*. The basis for the ruling of the Court of Appei ls is the.

introduction by the Commonwealth in its case in chief of

defendant's prior convictions of, or pleas to, a large nuin-

ber of unvelated crimes gt violence. 6

The indication that respondent was. a former convict

tirst appears at P-1, p. 489, where a Commonwealth wit-

ness, one f &bo, stated that he had been sentenced with

respondent at the same time for many of these crimes. The

Court sustained objection but refused to granta motion for

mistrial. The Court found-no preiudicial error Dad beer,

committed. «P-1 492.

Next the aan “thatcated that he was about to

offer the record of. respondent's prior unrelated crimes in

accordance with the so-called Parker Rule. to be! used hy

the jury, only when and if they had completed that part of.

their verdict deciding guilt and degree of guilt, and had

- decided “upon guilt of murder in the first degree. Then and

‘

-» ,

& »

then only night: jury advert to the histoty of crime and

afford it such weight ug they decided wit h respect te their

choice of penalty as het ween death or life impriyonmen®

Counse! for respondent stated to the Court that he in,

tended to request the Court to inaugurace in this case the,

so-called Split-Verdict procedure. The Court réjected th).

saying that it could not be done, that it was a matter for

‘the Legislature. (P-T, p. 14.

The formal offer, out of the presence of the jury, 0!

respondent's prior record appears at P-1, p. 614. Defene-

“counsel objected, pointing out that’ this wold be highls

prejudicial since the evidenesof defendant's euilt we-

overwhelming. (P-1, p. 618.) Av this Gonference, counse

for respondent made his only reference to due process it,

_ these words, speaking of the Parker Rule: (P-1. p. 6225+

f*y think j it has alw: ave be ET) al de it i! of due proces»

tO do that. They do not do it in the Fede rial Courts.”

In Court again, a bare objection was made. and th:

Court explained to the Jury at length the rescrictive or pos?

poned use of’ the test imony they were about to hear. | P-!,

pp. 622-625.)

The défense-int vodtced testimony, ey appears start

ing at P-1, p. 652 and concluding at P-1, p. 780, where the

transcript reports the Commonwealth's rehitt Tral testimony,

continuing to P-1, p. 972. In his defense, respondent pro-

‘duced testimony concerning his criminal past which peti

tioner clapms constituted a waiver of any objections he

claimed when his record was introduced. This is trested

in petitioner’s second question presented, ‘

JURISDICTION OF THE UNITED STATES

, ° DISTRICT COURT

Federal jurisdiction in the court of first instance, The

United States District Court for the Eastern pe of

Pennsylvania drose hae the provisions of 28 U.S.C. 2241

(3). :

”

iaue 6 :

. ¢ .

REASONS FOR. GRANTING THE WRIT

THE Je DGMENT OF THE Court O} Appr: ALS Reiaw ine

PROPL: RLY SET ASIDE THE JUDGMENT OF THE SUPREME

COURT OF PENNSYLY ANIA, AND DECIDED THE MATTER |

“IN A’ MANNER NOT CONSISTENT WITH ITS OWN

RULING IN THE CASE OF United. States ex rel. Her man

“Rucker r. David AM. Miers. a

The decision of the Court of Appeals in the instant

case is a, direct overruling of the judgment of the Supreme

Court of Pennstlvania, the Court ‘of last resort in that

State, 399 Pa. 110, certiorari denied, 364 US. S49 11960

There is no need here to enter into a review of the

nrogress of ineursions by she federalfcourts into Ure State's

prer@zatives in administering cximinal justice. Mr. Justic

Jackson covered i tield in his concurring oOpMioR iy Praveen

® Men "344 UU. 4455, 43 S. Ce. 397: ~

There ix no i to quote to this sourt ‘at lengih from

the f familiar tributes to the very weeat respect due Lo the

judgments of the highest Court of the State in exercising,

its rights and performing its obligations in protecting ‘il!

of the rights of the defendant in a criminal’ case, guaran

teed in both the State and the Federal Constitution. By:

People of Hinois, 333 U.S. 640, 649, B75. 68S. Cr.

763, 768, 781. : jorge ‘

What we need to gliscuss'here is not the uftinvate right.

or wrongs of the case, but w pe there exists a conflict

not only between the Supre Pou of Pennsylvania and

the Court of Appeals far the Third Circuit, which is clear.

but, also. whether there is a confliet Within the Court of

Appeals itself, as evidenced in the history of the judemen:s

in Scoleri and Rucker ‘ Appendix B}, and in the judgments .

_ themselves, which calls for an exercise of this Court’s

supervision.

Petitioner asks this Cour to consider whether it is

not possible that“the majority of the Court of Appeals*

hearing this case yfelded unwittingly to that emotional

appeal Whieh the Supreme Court of) Pentisyiwania resist ed,

as they Sead YO Pal atop. 135.9 His note worthy tha:

the then Chief pea ti Charles Alvin Jones, and his sue-

cessor as Chief Justice, John C. Bell, who have been OU

spoken in’ favowinye the split-verdich procedure, continued

steadfast in their adherence “to the Jetter lof the lav and

upheld the judete ntof oo sower court in the opinion writ,

Ten by their feliow-member of the Supreme-C ourt, Benjamin,

Jones, : ° : . , &.

The trial proceduse now deelared te be “se fu, ideumern

Tally unigst as to cause the grial courta@e lose juristiie: ion,

and to justify “the conclusion that scdleri was overrenched

ny the procgdure flowed at his trindSis irresistible’ «Ap.

pendix, “BY ge 59. mtray, was sone which, although

frequentiv ¢ waitined by members of the Supreme. Court ov,

Pennsvivania itself. pad for thirty years remained, uadis

eairbed. The peocedure stemmed from the Act of May 4,

1925. P. l.. Tow. which fer the first time constituted lle

WMprisonment as qn alternative punisSmeén: fer murder in

the first degree, together with death previously the sole

penalty, Anel Piened-to the fury the duty-of fixing the

penalty, be cits for the return et their findings in one

verdiet, : : Pies

This procedure iue™novwoere been more coneise:y stated *

. is) . =

than bv the Court below tn its opinion ia the imstimt dee

where it said: «Appendix B, p. 34. infra!

“Londer that portion of tie second pusaciaph of

Section TOL of the Criminal Code of 195° quoted, the

Jury bad the duty of determining the penalic- when,

as in Scoleri’s case, they convicted j defendan? of firs!

; degree gmurder.® The precursor of-fhe statute referred

-¢ to was the Act of May 14. 1925, 2.1. 74%. The earlier

‘Act need not be quoted here for, insofarst t he essential

* elements of the instant case are. concerned, it¥ sub-

stance was the same.’ In respect to-its effeet. Judge.

- Maris of this coygrt. in United States coy 4! Thom peo

ve, Price 25S F. 2deat p. 921, correctly and ‘succineth

oe OM

stated: ‘The Act of 1925 was interpreted by the Su

preme Courtoof Pennsylvania to permit the admissior

of evidence gf prior (unrelated) convictions solely for

~the purpose of enabling the jury, after it has found

the accused guilty of firs: decree murder To Know whe

manner of man he is and whether he is entitled to

mercy when they undertake t4eir task of deciding whi

penalty shduld be imposed upon bith.’ See Comoe.

emedlth ov. Parke r, 204 Pa. 144, 151-155. 143 Ath Qo4,

HO6-907 619280. in which Chief Justice Von Mose}:

zisker considered the effect upon the admissibility o:

evidence of prior convictions under the Act of the rule

of evidence that, in the trial of x defendant for x erime

evidence of other independeht, unconnected offerfse-

committed by him is not admissible to establish | hi

guilt. of the’erime for which’ he is on trig) A- Judy

Maris stated, id. supra, at p. 021, ‘The hief Justire -

stated: that since the statute required the jurors

assess the punishment ind’ permitted them to extend

mercy in a proper case-by red Qing the penalty to life

impris@ument. the jury should be permitted to have

the same sort of information thet 2 judge comsider-

** When he decides as to the punishmen: for crime. ee

» since in Pennsylvania the jurors May nvr render piecs

‘meal verdicts there is no pravision for Seyrivate inguin

Hence. concluded the Chief .] us? Ice, their singe verdic:

must include both their findivfe ascto the. defendan:’

guilt and their determination as to the penalty to he

imposed upon him.” Chief* Tustice Von Mosehziske:

concluded that the prescribed SUATULORY practice was 2°

permiss@le und*proper one.”

ee :

On December 1, 1959, the procedure in Pennsylvania

was changed through the passage of the so-called “Split-

verdict” Act, which provided that -daring the trial of an

indictment for murder the tourt shall inform the jury that

if they find the defendant guilty of murder in the first Je-

gree, it will be their further duty to fix the penalty there- |

: 4 ; : al.

for, after hearing such adglitional evidence as may be suby _

mitted upon that question. Under this statute evidénce of

prior unrelated crimes may not be placed in evidence until

and unless the jury shall have found the accused guilty of

murder in. ve first degree. The act does not prohibit the

Commonweaith from exercising its right to attack the cred-

(bility ofthe defendant, if he take the Witness stand, through.

evidence ef prior convictions of crimes of the nature of"

erimen fulsi, Which include: tile crimes introduced fn. the

cuse egainst Seolerl. | Appendiy “B". p. on, footnote 3. con-

laine Me text-of the Act.: This Act was passed after the

conviction of Scoleribut prior to fine! areument it Su-

preme Court of Pennevivas a. ? &

In’ the Supreme Court of 4 eNns¥ ivania, Scoleri based

eon a 3 .

his principal zrgument for relief upon his claim that dur:

ng a portion of the tri@] he was unable to consult with his

COURSE) Or to UNnderst itd ete praceecings, due LO, secret sel f-

infliction of drugs. | This cliim was made the basis for

almost the entirety of the extensive testimony, heard and

rejected by- the District Court.cand not even mentioned by,

the, Court of Appeais+ The transeripi has been certified

eres A iesser complaint Was made against the Court's.

charge on tie question, of alibi. As to the introduction of

prion convictions, the stress’ was jsid pom argument that

the Split-Verdiet Act.-must be construed ss reLrouctlve, so

a> te reach the sume posture whic resuied from the judg-

ment of the Court of Appendsin the instant Case, retrial

under the proevistons of the 5 Verdict Act. ef, Appendix

; . . re _ + . \

“BY, p. 89 infras. This aretiment Was reiected ond the Ac

neld toy he Prospective ony. 399 Pa, 110 120-137.

Congranted with the opinion of the Distri¢t. Court,

which had heard only perfune: my reference to the auestian

f£ the effect of evidence of pricy convictions, and had dis-

missed that feature on th authority of Timuson ov. Pree.

svpra, the Court of Apmeats resorted to a rather unusual

procedure. Jt limited the position taken in Thon pson

Price to “cases ip which the defendant g t ofnieet to the

admission into evidence: of his prior M@trd of unrelated

}

’

Mur people as to be ranked as fundamental, wh

10 ft ee

: a

pet eae sae TEEN es er ; .

criminal convictions.” (Appendix “B". p. 3s, infray. In

‘Thompson v. Price, the Court notes, it “held the practice

not to bea violation of the standards of fundamental fair-

ness coq by ,the Fourteenth Amendment” | Appendix

“BY”, p35, infra. We shall consider later whether a Court

of Appeals for the Third Circuk meintained this positien

in the Rucker case in which also the introduction sof suc):

evidence over objection was the basis for complaint. (Note:

Petitioner is advised that a petition to this Court for a wri’

- of eertiorari to the Court of Appeals for the Third Circuit

will be timely’ tiled»

" “This Court has 1 not betore considered the precise point

Judge Kalodner in his dissenting opinion, without trying te

support his dissent by attaching signiticanee to the denia|

by this Court ofsan appTication for certiorari, points ou’

that this Court has in recent years denied applications for

certiorari in ten cases frgm Pennsylvania, including Scoler

and Thompson v. Price, supra, antl that in only one of those

cases did a Justice express an opinion that it should be

granted. (Appendix “Bp. 40, infras.“That was in Com

monwealti iv. Rucker, 368 US. 868 21961). That tase is of

interest here and the opinion of tne Court of Appeals aj

pears herein, Appendix C. :

It should be helpful, despite the need ter brevity, in our

petition for ¢ertiorari to compare the two cases to deter

mine whether their contrary conclusions do not indicate ar

_ambivalence within the Court in the approach to the prob-

“lem which of itself’ is persuasive of the impropriety of the

Court’s invasion of State territory in this particular corner

and of the need-to reverse the order of the Court of Appe: us

that the writ of habeas corpus be granted.-

It is difficult to see the proprigty of asserting that th

about-face of the Court of Appeals is in tardy recognitio:

of principles so rooted in the traditions and congejence o:

Methe Proce

hirty vear:

dure sought to be overthrown has persisted for

and has withsteod.constant attack. Is there any significance:

in the fact that the procedure is found to be in derogatio:

> ‘Ll ee

Of due process at precisely the time 7. the Legislature of

Pennsylvania has decided to adop: 4 =Mii-verdict pBocedure”

Does the order reflect an intent to make the act retroactive

in Such selected cases as create 4 feeling of injustice. rather

than an objective study of the lay properiy applicable to

the sole case under scruuny” The Legislature did not con

demn the former procedure: it did no: make the ac? retro

active. c- e

The Order of the Cour: of Appeals in Scoleri avas en

tered October 1H, I862, and the opinion was filed the same .

day. The Order in Rucker Wwasrentered November 30, 1952,

While ji petition, for reargument in Scoler] was under con.

‘sideration by the Court. The Order deny ng rehearing in

Scoleri was entéred December 11. 1962. and iu very inter-

esting, if bef, Opinion was filed.on the sume day. ‘Appen

dix "BB", p. 59 infrar Petition ror re hearing in Rucker ha:

deen denied, without the filing of an Opinion.

The Court in Scgeri consisted of Biges, Chief Judge,

and Goodrich, Mclaigpilin Kalodner Staley, Hastie, Ganes

and Smith, Circuit Judge tigudee Goodricgé died before the

opinion in the case wes Ise? ‘Appendis “Bp. 34 intra

The opin denying rehearing stated that for the reaso!

that he died before the proposed opinion was circulated.

Iudge Goodrich did not vote (Appendix “B. p. 60, Infgs .

thus his expressed-opinion at the conference following. ora!

argument on the appeal, favoring.a denial of the writ. Was

not counted. | Appendix “B", p. 55, infra. teotnote 12 The

‘Vote to reverse the Order of the Districe: Court W& thus four

to three, Judges Kalodner. Staley and Hastie dissenting ,

This procedure is treated as Question Nu. 3. :

In Rucker, the Court consisted of Judge-s McLaughli

and Hastie. Circuit-Judges, and Judge Dumbauld. Distric:

Judge. Judge Hastie wrote the Opinion, sustaining denia

of a writ of habeas corpus, and Judge McLauvhlin dissented

In each ease a brutal murdér was perpetrated In the

course of a robbery followin® a_burglarious entry with in

rent torou. Ta each case an aged couple was vicaimized. in a

smal) neighbobhood store conducted DY toe vittims.

= ae

“

i 4 é e

At trial, in each case, under procedures w hich had been

upheld in State Courts for some thirty years. and whichshad

not been disturbed by any Federal Cou t. the record of the

defendant's prior convictions or pleas of \ruilt with respect

to serious unrelated Primes was offered and received in evi-

dence, over ae during the Commonwealth's case in

chief, for the restricted use under se rutin v here, ‘wit h time-

honovéd instructions. — ;

The Court of Appeals in Rucker had before it the Same

sit®ation which confronted it in Scoleri. and so stated at®

mage 2 of the Opinion: «Appendix “B’. p. 72. infra:

“Therefore our first inquiry is whether this cause

differs in anv significant way from Scoleri.”: —,

‘?

."° » . . °

tis urged by petitioner here that the attempt to recon-

cile the two results is uneconv.ncing and unsuccessful. The

Court in Scoleri, following the filing of the opinion in Ruck-

er, filed an opinion denying rehearing ‘Appendix Bo: in

whieh it attempted likewise to distinguish the cases through

the.means of advancing Scoleri’s weak: and contradictory

_evidence of alibi as hampered through the evidence of prior

_erimes of violence: In Rucker, the court had distinguished

the cases in the same way, by scoffiig ntany poss ib id t hat

Rucker’s attempts to-show intoxication at the time of the

crime, together with evidence that he became uncontrollahis

bellicose when in liquor, might have led a jury to Bmore

the felons-murder law raising the erifme to murder in the

first degree, and to fix the virtually conceded guilt at mur-

der in the second degree. ’

The factual differences are found not in anv variation

of the nattire. hesiiality ror death-deserving’ features of

the crimes, but rather from subsequent incidents which ore

pointed out bi. the Court of Appeals in the resnective opin-

ions: ‘

: se daft ese of Rucker and his companion tool

place within severa! botirs of the crime. and in ‘its immedi-

ate neighborhood. (Appendix “Bp. 73. infrgs: ive

» and had been creating a.disturbance in a tap-room in the

: 2

i3.

P | ee of Scoleri, his co-defendant brother, and

one Ida. Tocco, who shared her apartment part-time with

the respondent, was accomplished after a months-long inter:

state flight: during this flight. Scoleri had his companion

Idx Jocco dye her hair «P1, pp. 450, 556. 359). as did re- :

‘spondent’s brother (Pl, p. 451). switched cars and license

Plates (P1. pf). 388-445: 445. 457). ordered contact lenses

to permit the discarding of evesglasses (P1, pp. 451, 550).

Thus much was testified to by respondeny and his brother..

us Well as by Ida Joceo. who was a Commonwealth witness.

2. Rucker did nit take the s.and, but relied upon the

testimony of witnesses that be had been drinking 3 eg and

whiskey for a considerable period before the crime: had

openly discussed his contemptiation’ of robbing someone:

immediate neighborhood: other witt esses testified to Ais

chronic and uncontrollable belligerencs When he had heen.

‘drinking. | Appendix “B". p. 74, infra 3a

Scoleri atyempted toestablish an alibi.through his own

testimony and the testimony of Witnesses who were. as con-

ceeded by the defense. persons whose tectimd: vo must ix

i X

closely scrutinized. Scoleri admitted fo having failed to

procure medical care for one of the robbers who had beer

wounded by the victims He gave as His reason the fact that

\, . e } } . . } 3 * , ° hy « fc +

me Was a paroied convict who faced some thirty Vears of

back time. He admitted“baving-aided has brother in (isp

ing of the cadaver in New Jersey H-1, pp. 44-498, 716

As Rucker did not tuké the stand. the Common-

: wealth could not have used bis reeprd of prior conviction:

or pleas ofaguity in order to attack his credibility as a wit-

ness - ¥ as &

Through taking the stand. Scoleri opened the door for

°, , ; , » ; ° — oe

the: introduction of his prior record f the purpose of at- &

tacking his crediMlicy.

The justification expressed by the Circuit Court for

Penehiie entry leg le he eae CSeS ip pene

o 7 '

ag - ~ ‘ &

< )

“< *

rest mainly upon two factors: The nature of the effort of

the defense towards mitigation (1) of.the degree of guilt,

or, failing that, (2) of the’ penalty, for ‘a crime of. which

complete exctilpation was not to be hoped for.

The opinion in Rucker ignores completely the unpre-

dictable processes which motivate a ifiry—or a single yn-

udgenble juror--to stretch to the fullest extent the required

‘charge of the Court that they and they alone decide upon °

the verdict. To say. as the Court of Appeals does, after

quoting a portion of the trial courts charge denigrating

the defendant's testimony as to intoxiestion: (Appendix /

“B", p. 75, infra: .

Prana . |

*Consistent’with this charggsy the jury could -no,

properly have used the evidence of intoxication as 2

hasis for finding the accused guilty of an offense less

. z . ** 4; f

serious than first degree murder.

igto ignore the historical facts of jury verdicts. Consistency

either in finding. evaluating. and interpreting the facts, er

jn hearing, understanding. recollecting and applying he

charge of the trial court, has not been the undeviating

course of trial by jury. No lawyer is in practice fo: many

_nonths hefore he finds himself saving : “You never can tel!

what a jury will do.” Any compendium of murder trials,

any biography of a criminal lawyer. furnishes many ver-

dicts of sevond degree murder in which the law and the

uncontradicted facts shrieked out for first degree and@,

death.

How is it possible for anyone, Court oy layman. to

<a¥ that, absent the knowledge of prior guilWof veluntary

gf, Penslaughter and of aggravated assault, the jury might

o nochaye treated Rucker as an alcoholic, a drunken bum who,

because of an unconquerable failing ‘now generaily recog-

“nized as a disease) perhaps inherited, perhans, as was men-

tioned, related to military, combat experience | Appendix

“B”, p. 78, infra’, was not to be held to full accountability?

Who can say with judicial assurance no juror would have

said: “Second dégree—-that’s it as far as I'm concerned”?

& ;

° sy o

‘There can te no denial thatea verdict of murder in the

second degree is’ frequently the result of a compromise

among stubbornly opposed juroa. We must bear is mind

alsy that no defendant -may in Pennsylvania enter a plea of

euilty to murder in the first ee He may plead guilty to

the crime’of murder generally, but che trial court must de-

termine whether the Commonwealth had met is burden‘ of

proving every element of. firs: degree murder: the pre-

sumption deriving from the plea riseseno higher than: mur-

der 1} ap. secone degree. Cai stiespe cere ard efi e Mity Ale ‘ ao }

Pal 34, 37 61958

° The dec ae thyitesince Scoleri wi ms making an attempt,

however feeble, to exculpate himself through an alibi. which

required? the pean tion of identification of Scoleri as a

participant in the crime. and as a fugitive fronf the scene.

that procedere which was fair in the Rucker case, and fair

i hundreds of exses for the Jast thirty yeors, bee:me sud-

leniv basically unfair and so gravely prejudicial. as to be

ee ; ; » eee

in conflict with the “fundamental principles of liberty and

astice which He at the base gf all our civil and political

stitutions 2 ds indeed a “feat oof psv@ologicn!

wizardry.

As an exainple of the quality of the alibi, see P-1,

os 1. and P-1, p. 715. In the’ former testimony, Joseph Sco.

testified thagon the way from the ‘robbery, with the

Aca Woods in the car. he came upon respondent in the

oe By orci iat drove the car to Locco’s apoarcment.

In the latter fussage. respondent says that he was idling

nthe street. very close to the apartmeni: he saw the ct

crive @p to the apartment, saw Joseph alight from the car

-and proceed to the apartment. Respondent called to his

‘irothey and was told of Woods’ condition. This contradic-

tion cougl have cecurred only through a lapse of memory

of a rehearsed story, not through misrecollection. Only

Joseph Scoleri and Margaret Shracei, brother and. sister.

respectively, of respondent testified to the alibi. Shyacci

testified (P-1, pp. TOL-S12) that Scoleri was visiting her

at the restaurant where she was empleved. before. during.

; ° Z F. % ee >

and shortly after, the critical period. She testified also

(P-1,-816) that he had been limping for_some time prior

to, and on, the date of the murder.- Other witnesses test!-:

gHed in support of the defense that respondent could no:

have run from tife store and the scene of the crime, is

testified by’ prosecution Witnesses, because of an injury he

had received about two Weeks prior to’the crime. Rit:

Catalano, a friend, testified (P-1S16-17)s that responden:

Visited her on August 20th, and was limping badly, Other

Witnesses testified that respyndent was limping 4 uring thi-

period, although he never used a. eane or other aid. They

were Mrs. James Scoleri ‘wife of respondent's brothec*

James: (R21, 833. 845) 2 Dante Scoleri brother of vespond-

ent, testified (P-1, 862) that he saw sespondent limping

badly on- August 24st. Mabel sreckman, mother. of re-.,

<pondent, testified (Pel, p. 82) tha: he was limpine dys

ing August. ey

In rebuttal of this testimony the Commonwesith pre:

duced Franklin M: Caraker. a parole agent for the. Poenp-

sylvania Board @§ Parole, who had charge of respondent's

case.. He testified thay he visited respondent at home. 262::

South Juniper St.. on August 26th and that respondent

came to the office of the witness on Aweust 201h a: et AM.

: ‘He saw *espondent walk and wadked with him in the offic.

for short distances: he saw no limp. ‘(P-1, pp. 891-896..

Under cross-examination, the witness said that had re-

spondent shown any. sign of limpings the witnes: woud

have noticed it) + P-1, pp. 900-901... The Commonwealth

- also called Detective Wievand, who testified (P-1, O71 22

that he had, in the course of hix duties iInconnection with the

case, interviewed the Withess. Margaret Shracei, on Ser.

tember 9, 1958, and that she said nothing of vesnondent'-

having been with her at the time of the creme.

The Court of Appeals, in both the Scoleri and Rucker

opinions, lays great stress upon the volume and weight of

the prior criminal record of Scoleri as. against the two-

offense record of Rucker. In Scoleri, evidence of twenty-five

° d ;

17 ‘ .

pleas to, or convictions of, serious crimes is: mentioned

‘pointedly at pages 32, 35, 36. 37, 38 of the Opinig on the

appeal | AppendixncB'7 and at pages 59 and 60 of the brief

Opinion denying rehearing. (Appendix “B's. In the Rucker

Oginion, at paves2,.the phrase “iwventy-five prior robbery

convictions” is used, and later in the same paragraph the

reference is to “proof of a large number of, previous rob-

beries by the accused”. | Appendix “B", p. 72, infras,

“© This recurrence of the phrase “twenty-tive convictions

of, or pleas of ‘guilty to, charges of armed robbery) within

the contines of a very brief eXposition of the reason for an

about-face, nas significance. It seems that the gravity of the

claimed prejudice grew With each successive instance of

prior crime, grew and grew and grew until “The conclusion

that S@leri was overreactied by the procedure followed at

his trial is irresistible.” (Appendix “B", p. 39, infra. ;

. Petitioner inquires, “At what point in the recital did

the conglusion of reversible prejudice become irresistible?

Could the jury put the knowledge of twenty prior convic-

tions out of their minds while considering cuilt and degree?

Hifteen? Ten? Tell us, We-ask, what ix the magic number

at which the quantity, through Increase, accomplishes the

change in quality of the evidence so as to render it’ preju-

dicial? If Scoleri was overreached. what of Parker, of De-

Pott of all the others in which this Court-refused to review

the rulings of the Vourts of Appeal, finding that the State

of Pennsylvania was not overreaching defendants through

this very same procedure? Why is the vear of L962 the vear

of after-discovered prejudice? «Cf. Appendix. “B", p. 50,

infra., footnote s>. .

Whence is to come the Wizardry to determine, from the

printed record that a certain jury, ina certain case, was so

influenced by learning of a prior record of convictions or of

pleas of guilty to a’certain aumber of crimes as to violate

the oath of office, ignore the emphati¢ jnstructions of the

court and to forfpty the life of a defendant who had been

committed to its keeping. A certain presumption of regu-

‘

’

larity used to hedge about the verdict of a jury. Any polling

of a jury as to the feature of the case which finally tilted

the seales for or against a certain verdict is frowned upon.

The task imposed upon a jury of holding in escrow the

knowledge of prior convictions until, they have reached a

verdict ‘as to guilt and degree of guilt, is a-simple act. of

control compared to the task of taking a record a year on.

so after the conviction, and attempting to measure the effect

of this knowledge upon the minds and consciences of the

jurors, watching for the moment when it may: be, said:.

“That does it! Prejudice has now matui ed.” Is the Federa!

Court to sean the newspapers of the time of trial to deter-

mine whether any event may have preconditioned the mem-

bers of a jury to disregard their obligations? Was there a

spate of crimes committed by convicts on parole which might

have generated such prejudice against the whole class of

paroled persons as to make the knowledge of prior offenses

impossible to ignore in arriving at the initial verdict of

guilt, and the subsequent verdict of degree? Should not

the Federa! Court have the benefit of a psychological and

psychiatric report upon each of the jurors in order to judge

his susceptibility to prejudice? Or is it sufficient for the

court to conjure up from their own experiences, their philo-

sophies, their attitudes, the probavle effect. Grant of cer-

tiorari will afford this Court the opportu ity to resolve the

difficulties indicated in the foregoing reductio ad ahsardum,

This delegation 6f conjecture to the fede: ‘al courts

would in effect’ produce intuitive law and ad hoe decisions.

This seems to be in the mind of the Csurt in Scoleri, when

it felt constrained to say, in the Opinon denying rehearing:

(Appendix “B", p. 60, infra? .

We have stated the foregoing to make it clear that

every case which involves the delicate ba'snce of comity

between the courts of state and those of the federal] sVs-

tem must be considered and decided on its own precis

facts. Tn the case at bar we didnot lay down a rule of

eridence for the Pennsylvania State oTrihunal, Wi

7 : e454

hirnsde d down a judgment as to the fundamental fair

ness or unfairness of ichat was done i 1, this porticulas

ease.” + Emphasis added :

The “foregoing” mentioned Was a statement tha:

“The issue of Scoleri’s guilt as Well as the penalty

to be imposed on him were both before the jury for

determination, Scoleri’s defense Was an alibi and he

attempted to prove that the witnesses hg festitien!

that he was at the scene of the crime had made a mis’

take in ‘identification. In short the.issue of identities

tion ‘Was vital. On this state of facts we held that the

introduction -into evidegce of the twenty- tive prior un

related convictions of, or pleas of guilty to chaubkyes of

robbery with violence wére so prejudicial, as to const

tute a de nial of due process of law to Scolevi.! (Ap

pendix “B’, p. 60,infrar. °

The “foregoing” had not bee ‘nomentioned in the opinior,

of the Court, handed down ‘before the opinion in Rucker.

Neither the word “alibi” nor the word “identification” was

mentioned as part of the Court's opinion, (The word “iden

tificatiun” was contained in a quotation from the Common

~wealth's offer of proof of the prior convictions, and related

to proof of Scoleri’s identity with the person named in the

Bills of Indictment to be introduced charging those prior

crimes.’ The original opinion. did not advert to the defense

advanced by Scoleri‘at trial, nor to his princ ipal basis for a

claim of prejudice, his physica! condition, We! have seer

above the futility of the attempt to establish Wn alibi. and

lack of mobility.

The Court of Appeals here is hard put te it taplain

its about-face. The*Opinion points out that in He egies s

ee orel, Tho: WpSon ve Price, 258 F. Pd YS, certion: ari denied.

S58 US. 922 +1958) it had held the very practice here con

demne ai not tohe a violation of the ; standards of fundamenta!

fairness required by the Fourteenth | Amendme nt. fn that

20 cs

case, J udge Hastie, in a concurring opinion,“made it clear

that he would have-dissented if the-record of Thompson's

prior conviction by a court martial had not’ been admitted

into evidence. not only without objection ggut with the,con-

sent of defense counsel. (It may be noted here that Judge

Hastie, who wrote the opinion in Rucker, uphtlding the

death penalty, has filed a dissenting opinion here, based

upop the approval by this court ef the habitual offendér acts

which permit knowledge of the defendant's prior crimes to

vo to the jury. before determination of yuilteor inn@venée. |

‘Appendix “B”, pp. 55, 56, infra). The Court, without stat-

ing the present moving element in its action, says: | Appen-

dix “B", p. 38, infra! , 9

‘This Court, as presently constituted, limits the

— that it took in United States ex rel, Thompson’

_ Price to eases in which the defendant did rfot object

\o the admission into evidence of his Prior record of un-

relaied ermine convictions.”

_ The opinion, immediately prior to this statement, had

been diseussing the habitual criminal statutes, pointing out

that the evil result of-evidence of prior unrelated chimes

could, at most, subject the defendant to an additional prison

term, whereas Scoleri had been sentenced to death. Liberty.

as Mentioned in the Fourteenth Amendment. is Now a poor

relation of life. :

The lower Court's disclaimer of intention to lay down a

rule of evidence for the Pennsylvania State Tribunals is the

type of rationalization which was warned against in United

States ex rel. Barl Savaders vo Mycrs, Warden, 276 F. 2d.

790 (3 Cir. 1960+. Saunders had been convicted of murder

in the first degree, witk punishment of ‘life imprisonment,

largely upon the testimony of a ten vear of] boy. Objectioge

was made to the reception of evidence that the boy had iden-

tified Saunders in a dine- -up. The Opinion held: ‘at page 71)

“With certain exceptions, see Suni! vr. Large,

(1947) 3382 U.S. 174.6. . none.of which are here

S::; /

t -

- fa _

. : o e ®

_ .

21 ©. . .

; f :

present, admissibility and sufficiency of*tev idence are

matters for appeal, not habeas re. ‘citing a long

list of. Cases). é

a eed

‘Because, as here, there has been unsuccessful re-

course Lo appeal, does not make habeas corpus available

asa further appellate step, Federal Courts may not

promulgate rules of evidence for state courts under

the guise of presery ing due process.” ‘

The petitioner. ih order not te lengthen this ‘already

long petition has refrained, fron: repeating the excellent

analysis in the dissent of Judve Kalodner «Appendix “PR,

op. 39) et seq.. infra’ which relafes to the incorrectnéss

of the-pidgment. It is copropriate, at this point. to repeat

one small part of what he said: « Appendix +B", p. £9.

infra: ; ,

“AL any rate. as it Was said in Baltimore ei:

Show C; State, oF A. 2d 497, O14), 1933 Md. 300 (1949)

cert, denied, 338 ULS. 912 619505 - : “y

“Withoit questioning the syundness of the

ule of exclusion prior to verdiet, it remains « rule

. cof evidence, not a constitutional right. .

“Her the majority Mas exalted a simple evidenti-

* ary rule to: the hallowed status of a constitutiona:

pega and its ation is doing so is without preced-

ent.’

Walvin ‘ : one

It is submitted that the finding of the Court iaf Appel:

gr ‘expressed at Appendix “B”, p. 37, infra’ that there is

total lack of validity to Peitiioncr’s argument that Respon-

dent waived his right to assert lack of dué process in the Pro-<

» 7

cedure complained of, is in conflict with the rulings of a

‘

22 : ee

. =~ 7 a °

number of other Courts of Appeal, ay tainly in principle,

if not squarely on the facts ‘nape

The opinion mentions the testimony offered by Respon-

dent-and his witnesses corroborating and amplifying the

“evidence of prior crimes, but the opinion dismisses this

evidence as being without significance on the question of

Waiver since “the fat had already been put in the fire”. The

opinion then relates the allegation of waiver to a ‘relatively

harmless remark by Respondent's girl friend, testifying as

a Commonwealth witness, on cross-examination. The opin-

ion does not consider the waiver arising from Respondent's

use made of his criminal record when hé himself took the

stand. It is a not unusual technique for skillful defense

counsel to attémpt, in desperate straits, to turn the gerious

criminal record of a defendant who is on parole into’an ad-

vantage. This is egpeci: ay so whén, the overwhelming evi-

dence of guilt demands that the defendant take the stand.

This may succeéd, even’ though the jury has not been aware

of the record, but the defense knows it will be introduced

in rebuttal, for the permissible purpose of attacking the

credibility of the defendant-witness. The hope is that the

plaintive wail will win over enough jurorg to prevent A

- quick verdict, and eventually gain an acquittal: “Can't you

members of the jury see how utterly incredible it is that this

defendant, knowing that conviction of a crime will auto-

matically return him to prison for thirty vears, would risk

the precious liberty which he vearned for during those long

years .in_ prison, — would Hisk everything -for the meager

proceeds of this cofner store?

Judge Kalodner analyzes the situation wel! in his dis-

“senting opinion. (Ap, endix “B, pp. 51-55, infra.) We shall

not ‘repeat his references to McCormick and Wigmore.

In. bringing in the testimony of Dr. Vasquez. Respan-

dent was actually attempting to use him as a character‘wit-

ness, combining testimony of reformation with charitalje

interest in his former companion in crime. See the testi-

mony of Dr. Vasquez (P-L, pp. 871-875', and Respondent's

own character-building testimony (P-1, pp. 727-730).

2: .

A confrary conclusion as to the effect of such_testi-

mong following admittedly improper sbwreigaasess tesmony

Was reached in the case of United States 4 . Graber, 123

F.2d 307 «2 Cir. 1941). Defemdant objected to cross-ex-

amination of a witness c¢: illed go attest to defend: int’s good

reputation, as to whether the Assistant Attorney General

of the State (the\vitnesAvas C ounty Judge of Queens Coun-

ty. New York! had reported to the Chief of the Securities

Division that “he had received information that Gruber

bad rece&ed 2 bribe as a Deputy. tind Attorney Gen-

eral”, While tye witness denied that he had heard the rumor,

“there would, under certain circumstances, be prejudice in

~uggesting reports ofthe commission of crimes not within

the scope of the indienment. Part whether or net the ques-

ton Was permissible, it cannot be regarded’ as damaving, in

view of the fact that Gruber took the stand himself and wats

examined fully about the alleged bribery and explained:

ghat the charge against him was withdrawn by a litigant

and that the matter was closed to the satisfaction of the

Attorney Genéral of the State”. ,

Tronge r Corp. Goodman & Thicse, ly > F.2d 2ST

Cir, B6s. Under a claim of a third- floor tenant for dam:

ages caused by alleged nvedivence of fourt : -Hoor tenant, of

a commercial building, the Court pf Apne! Ix fauna that the

court below had erroneously admitted as res gestue a state-

ment made some time after the occ urrence by an employee,

of defendant to an employee of the plaintiff.

However, the Coyrt of Appeals held that defendant

waived his objection because defendant asked for produe-

tion of he statement, and cross-examined its tens ee, the

plaintiff's witness, as to’wherher he had made the <tate-

ment, the Court said “Obje@ ion to competeney is lost if tt

objecting party offers the same testimony ds evidence.” 153

F.2d at 2880. ae

Itis urged that this question of waiver. as raised he re,

ix of sufficient importance and frequency of occurrence ty-

Warrant consideration by this Court. - -

IIT. THE FAILURE TO CONSIDER THE EFFECT OF THE VOTE

_ OF JUDGE GoopRICH, EXPRESSED IN THE Post HEARING

> CONFERENCE.

It is urged that the circumstances presented through

the death of Judge Goodrich raised grave possibilities of

confusion and misunderstanding among litigants. In a cafe.

such as here, where the death of 2 judge who has gone on

record in some fashion or other, after hearing argument

and after having discussed with his colleaguesthe pros and

‘cons of the case, leaves the balance of the Court in such

posture that his vote, if recorded and counted, would briny

about a result different from that reached through omitting

his vote, some definitive guidance needs to he given by this

Court.

As hawgheen noted, the Court which heard the appe

from the order of Judge Grim, dismissing t#® petition of re-

spondent for a writ of habeas corpus, consisted of eigh:

judges. ;

ticipated in the consideration of this case but died prior to

the filing@f this opinion.Y | Appendix “B”, p. 39, infra: .

Judge Kalodner added a footnote at the conelusion of

his dissenting opinion | Appendix “B”, p. 55, infra, footnut+

12) which recites the note by the majority. and adds:

“It should be noted that at the conference follow-

ing cral argument of the appeal Judge Goodrich voted

to affigm the Order of the District Cour: denving the

writ of habeas corpus.” :

The opinion denying rehearing states ‘Appendix “B", »

. eee _ An expression of a point of view by a mem-

ber of this Court at conference is tentative. The vote

of a member of this Court in the disposition of an’p-

peal occurs after the proposed opinion of the court i-

a2.

The iki contaims the note: “Judge Goodrich: par-,

e¢

a "Ss

circulated and does not become effective until] the opin-

ion of the court is filed. Judge Goodrich died before the

circulation of the opinion in this case and therefore did

not vote.” . ; ba

a ° ;

Judge Kalodner, concurring in the denial of rehearing

ald: (Appendix “B”, p. Ollinfrhs.

ST must add that I deem the point raised with re-

@spect ‘to the failure to count the vote of Judge Good- -

ich” to be without mertt.”

Argument wae heard June 5, 1962: Judge doodrich

died June 25,1962: the opinion of fhe Court was filed Octo»

Fem 10, M62. As the opinions indicate. this pointthad been

urged in the Petition for rehenring

Petitioner, with allyespect and affection for the Court.

vet insists that the Court which heard te argument and

‘onferred thereon did notagree upon the majority opinion

iS WYItten. os , : . o¥,

There is not the slightest indication that Judge Good-

rich Cianged his opinion bezween June d. und June 25, 1962.

How then, during his life, could “the pMposed opinion of the-

‘-ourt” be circulated? The Court was evenly divided, for, obp’

viousl the judges who wrote or cemcurred in the dissenting

opinion did not change their conclusions, The only “opinion”

which could have been circulated was One which stated that

he Court, was evenly divided, and therefore the judement

of the District Coggpt was sustuineda

In this very case, in the proceedings before the Supreme

Court of Pennsy}vania, the-report of the case in 299 Pat

"IO, presests the same. situation. abeent. fortunately, the

ntervention of death. : ; ‘

- The repo shows om VS) thes ne case was argued

October®l5, 1950. hefore a court consisting of Jones, CJ..

Bell, Musmanno, Jones, Bok and McBride: Reargument was

neard on January 14, 1960, before Jones. C.J. Musmanno,

Jones, Coben, Bok and Eagen. JJ.

“4

? a ner ;

26 Co ea

: on x

A footnote states:

ise ? . . . Pm . “4

. . “Mr. Justice McBride's term of office having es-

* pired before the reargument. he took ne part in the

decision of the case.” ee

In denying the petition for a second re-argument, the

Supreme Court of Pennsylvania points out that reargu-

meng Was granted because Mr. Justige McBride’s tenure

had expired before the appeal had been disposed of. Insteac

of reaching a decision through the vote of a court thus re

duced after argument, the Court ordered a reargument «4

the merits. The opinton stir Petition for*reargument state

that counsel for Scoleri were invited also to express thei

views With respect to the intended effeet of the Spliteverdic’

Act,'which dad been passed December 1, 1959. 1399 Pe

151). “4

The Rules of the United Stat e<Court of Appeals forth:

Third Circuit, Rules 4 and 5, treat, respectively. of CON

STITUTION OF THE COU nT. DIVISIONS. QUORUM *

and ASSIGNMENT OF JUDGES.

Rute 465 ; ges:

“Court and Dirisions—N wither ot Judges tas

Court « Bane. Cases and vontroversiées shall be hear

and determined by a court or division of not moreThe:

i) three judges unless a hearing or renearing before the

court in banc is ordered by a majority of the active

judges.-The court in bane shall consist of all the active

circuit judges of the circuit.”

Rule 5 +2: reads

“Cases to be Heard- by Judge s So cissiqned. A!

matters pending in the court. excépt matters assigne:

to‘a division, matters divected to beAeard or*rehezr’

by the court in bane and further proceedings in appe:l-

“and petitions previously heard by the court on the

merits. shall be neard and decidéd by the judges wh:

have thus been assigned to sit in the court at the tim:

of hearing. if practicable.” °

CPR LRE DIOL OP

al ‘ :

Pes

{ .

i ee =

o> * 2

— a 2

. rn eaten —+

‘precise question involved, there is an example here of the

It is urged that Rule 4 3 requires that the hearing be -

fore the Court in bane mus be determined by the Court: it

banc Wie heard the case, not by a diminished court. Thi- ‘

is particularly Important where, as here. two important fac- - @-

tors etet. the fact thar it is # capital case. and the faet that

8 ts . , '

Slates rights are involved.

Ihomay be argued that the qualifying purase, “if prac

ticabile’ in the passage « quoted from Rule 3. justifies a de.

termini sige by Jess than the full court: It would seem, how .

ever, that the phrase refers inctha: respect to the hearing

and aif for the absence erinability to take part in the R

‘ase from its Inception. Te hold +] e opposite might lead "e ,

a ridiculous p redic ameni if the number of the court Sitting

In bane was lessened, before determination of the cise hy

three. or four. or seven or elute! mem ters

Counsel has been unable to discover 40) Case pre

cisely in point. and urges that this: situnties merits con ;

. : ‘ os ; . >

sideration ’

. ae a ‘

8 .

CONCLUSION | | ‘

ih ’ eli) Liat: Of the ~plittverdies PPocedy pre nc Penn

\¢ 2

SVivania should not militate against the grant of certiorar,

The question invelved survives. vet the Court below afforded -

no test, ne guidance. which may euBeither prosecutor op

defense counse!jas to his choice When faced ina trial with

comparable situation

The number of states which retai the <#-culied Parke

Rule, and the number of prisoners serving terms of life in ;

prisonment as a eMesult of convictions after trig! in Whic

that procedure was followed. make~ the tips' question her

presented one of very great Importance addition tr tise ;

mesubts of the progressive tenMency to nol <ultable’ fo:

edera! consideration tris! procedure- which should not iv

pressed Inte ; Hag niitie ona, mold, comin se af am TH omer

uniformity in detail which js dis ave pe dewu preac}

ing We have Pro Vvesserdi x » inthe M

4e«

28 '

Justice Jackson pointed out some ten years ago, that Courts

of Over and Terminer begin to wonder ‘vhat is the good of

hearing causes which they may not determine, and the judg-

ment of the highest State Court is merely a springboard into

the federal courts, where intuitive Justice, the suitor hopes,

‘may mercifully supplant the on-site consideration of living

witnesses. ,

Il. The question of waiver. on the other hand, is Pne

which may well be the subject of a detinitive ruling whic)

. Will afford guidance to counse! as to the need to rely upon the

validity of their objections to damaging evidence Whig) has

been admitted, and the use that may be made of thal evi

‘dence without waiving the objection.

Il. The htigant is entitled to a judgment of the Cour

Which heard the argument. Where, as here, a definitive, ir”

revocabie vote is impossible, then either the revocable vote.

rendered ut post-argument conference should be counted,

absent any indication of a change cf conclusion, or, ut least,

a reargument should be had before a newly constituted

Court in bane. Death should have no decisive vote .

Respectfully submitted.

Louris F. MeCarr

Assistant Tristrict Attornes

ARLEN SPECTER -

cissistai:t District Attorne 4

Ch i F. i. tigations Division

; b. EMMETT FITZPATRICK, JR.

Furst Ask/xte) t Pistrict A[ttorne 4

JAMES C. CRUMLISH, JR.

iD strict Attorney

. Attorire ys for I’ titione)

APPENDIX “A”

Section TOL. Murder of the First and Second .Degre:

All murder which shall be perpetrated by means of

poison, or by lying In wait, or by any other kindgf willful,

deliberate—-and premeditated killing, er which shall be com

mitted in the perpetration of, or attempting to perpetrate

any grson, rape. robbery, purely, or kidnapping. shall be

murder in the first degree. All other kinds of murder shal

be murder in the second degree. The jury before whom an,

person indicter l4or murder sha!! be tried, shall. if the my ‘|

such person. guilt, thereof, ascertain ny their verdic:

Whether the person is guilty of murder of/ the rst or sec

ond degree. Tf such person is vonvicged by confession. the

court shall proceed, by ex? ple Withesses, to deter

. mike the devree of the crime, and to vive sentence accord

ingly. .

Whacver is convicted of the crime of murder of the firs!

degree is guilty of a felony and shall be sentenced to sutTer

death in the manner ators by Jaw. or to undergo im-

prisonment for lite, ut the diseretion of the jury trying the

case, Which hall fix ae penalty by its verdict. The cour

shall Impose th ie sentence so nxed, & in other ce ases. In cuse-

of pleas of guilty, the court, where it determines the erim:

to be murder of the first derree, shall, at ats discretion, im

lyse sentence of deat: or imprisonment fer life. The ¢ leak of

i court wherein such convietion tikes place sttail. withi:

ten (10) days after such sentence of deati. transmit a ful)

and complete record of the trial and conviction to the Gos

ernor.

q 3

APPENDIX “B

‘Plow ab : o

UNITED STATES CoURT OF APPEALS

: ’ FoR THE THirp Circcr

No. 13.834

? “e+

UNITED STATES oF AMERICA EX REI

4a ; :

ANTHONY SCOLERI.

° etpneilant,

) ee

neaee é WILLIAM J. BANMILLER, Warden. kagtern Suite

. Penitent ary: +s

Appes! from the United States District Court for th

astern, District of Pennsylvania

Argued June 5, 1962

Before BiGGs, Chief. Judqe,.and GOODRICH. MCLAUGHLIN.

KALODNER, STALEY, HASTIE, GANEY and SMITH,

Crrewt Judges. ‘

OPINION OF THE COURT .

(Filed October LU 962 Pe

_ By BiGGs, Chie Judac.

In this habeas corpus proceeding, in which the writ wa-

denied,’ we are concerned with an issue Which arises under

‘See 198 F. Supp. 872 (D.C.E. mee 1961. Sceleri has -ex-

hausted his -tate remedies. See f/ POST citing Commonwealti

Scoleri, 399 Ps. $10. 160 NX. 2 215, cortiorari de med, 364) US. s4t

1960). Cf Bx ‘parte Abernautny, 320 ULS. 219 11942 Darr

Burford, 326 LoS) 200 (1950): 0 nited States ex ore! Ackermar

Johnston, 235 Fo 24 958 63) Cir, 1956 Spots demed, 552 ULS

942 (1956. See Seetjon 2251, Tith 2s. USC

_@ . 2

- tne Biic Process Clause of the Fourteents Amendmen® an

issue Which is almost the sam? as that wilich was before u-

n United States ex rel. Thompson v. Price, 258 F. 2d 91s,

-ceruiora’é denied 35s Ul 5. 922 cits). and whieh we there

decided agains: the reitor The operative facts in the cast

eat bar are somewhat different and we reach a. different

: result, Pee

Antnony Scoler) was indicted, unied, convicted and sen

teneed to death by the Conary, of Over and Terminer, Phids

delphia County. for tne, felony murder of Max Gordon it

Philadelphia on August 25, 195s. The trial took place No

s ~ vember 17. througi November 26, 195s. A jury was em

f ploved. During the prosecution's case-in-chief Riehard Feb

tesufied tha: ne nad known the relator for about eighteen

years and a: ene Lime nad been séntenced to prison With him

Scoleri’s counse! moved for the witndrawal of a juror. This,

motion Was denied but the cour’ informed the jury that it

would be charged later “with respec: to that kind of tes

mony”. There followed a conference ac sidebar as to the

—— of charging tne Jury but it is unnecessary to deiai

nar conterence mere. Aca later point in tae trias. when Lieu

venant William De! Torre of tne Philadelphia Police Foree.-

ne exper: ny charge Of its ballisties inborntory. Was testify

my, the issue With whien we are concerned came squarely ©

betore the tria. court. Tne Assistan' District Attorney

Fated") offer to prove for the purpose of peniuty-tne prior

record of cenvictions= for armed roMbery and burgiaries of

the defendant through-tne origine Abilis of indietmen:

and throucn identification witnesses.” Scoleni’s course) ob

rected to any proot of his cents crim'nal record, specifically

reiving on tne Due Process Clause. Tre objection was over-

sees and Scoleris criminal record was pus before the jury

* han instruction, however, tha’ tne record was to be con-

paket by the Jury solely.in connection With fixing the pen-

aliv. Tne court admonisned tne members of the furt tha:

this record in any manner whatse-

“vou dre pot ta consider

2 32

ever in your consideration of the facts.” This admonition

was repeated later in the court’s charge to the jury.?

It was thus brought to the attention of the jury tha’

Seoleri had been corivicted of or had pleaded guilty to

twenty-five different charges of armed robbery. The jury

found Scoleri guilty of first degree: murder. and returned

“Death” as the penalty. That sentence-was imposed by the

court. A motion for a new trial based on the introduction of

Scoleri’s criminal record was overruled. The Supreme Cour:

of Pennsylvania affirmed the judgment, three Justices dis-

senting. The Supreme Court of the United States denied cer-

tiorari. See note 1, supra. Habeas corpus Wes denied by the

court below. The appeal at bar followed. pelaees: .

On August 28, 1958, the day of Gordon’s murder and

thereafter until its amendment by the “Split-Verdict Act”

of December 1, 1959; P. L. 1621, Section 1, 18 P.S. Section

- The court stated: “If you decide in this case, after examining

mit very carefully, that it is murder in the first degree, then you must

consider the penalty. This ‘is your penalty which you indicate, but

not impose, and I netice that you have been axked in thundering

tones, Are you going to send him to the. electric chair’on t@e test:

mony of David Tupper? Are you going to send this ‘man to the

electric chair cn the testimony of Dr. Kushner, the optometrist”

Are you going to send this men)to the electric chair, Was thundered

at you, on the testimony of Haifz” Certainly, vou are mot. It would,

be terrible if you did that.‘ You are not being aské@d to send this /

man to the electric chair on the testimony of any single witness. [7

might well have been said to you that on the combined testimons

of all these peopie what is your determination? Are vou going to

find him guilty of murder in the first degree” That was not even,

discussed “with you, but I tell vou, members of the-jury, that vou

have those ather decisions that you can properly make under the -

testimony in thi case, and I bid you recall the evidence as you heard

it, and I bid you, if you find a verdict of murder in the first degree

in this case, that then, and then only, you consider this man’s record

and what he is. What is he* What is the enormity of his crime”

The Commonwealth seeks no vengeance against him. The Common

wealth in the main seeks deterrence of other people who do this kind

of thing, but I don’t know that he has done jit. That is for vou to

decide, and when vou were sworn you said vou wowd.”

; re ier

‘ 2

4701 (Supp.i Section 701 of the Pennsylvania Criminal

Code of 1939 applied in cases of first degree ‘murder. The

second paragraph of Section 701 provided in pertinent part:

“Whoever is convicted of the crime of murder of the first

degree is guilty of a felony and shall be sentenced to suffer

death in the manner provided by law, or to undergo im-

* prisonment ‘for life, at the discretion of the jury trying the

case, which shall fix the pcaalty by its verdict. Bhe cour

° ; : . 2 | heres

shall impose the sentence so fixed, as in other cases. . ‘.

The “Split-Verdict et" of December 1, P50) provides

pertinent pari that: “Whoever is convicted of the crime of murder

of the first degree is guilty of a felony and shall be sentenced te

suffer death in the manner pr®vided bY law. or to underyo imprison

ment for hfe, at the discretion of the jury trying the ease. which

shall, in the manner hereinafter provided, fix the penalty. In the

triak of ane indictment romurder, the court shall inform the Jurys

that if they find the defendant yuilty of murder in the first degree

it will be their further dute to te the penalty therefor, after hear

ing such addationad evidence as may be submitted Upon that ques

Tron, Whenever the jury shall ogree upon a verdict of murder of the

tirst degree, they shall immediately return and renderthe can e, Which

shall be recerded, ond shall not thereafter be subject to or’ onpid

eration by the jury, or ony member thereof. After such verdiet }>

recorded and before the jure ts permitted to « parate, the court

hall proceed toe receive, such additional evidences ‘not previous}:

zeceived in the trial as may be relevant snd admissible Goon the

question of the penalty to be imposed upon the defendant, atid ha!

permit such argument by counsel, and deliver such ch ge thereon

os May be just and proper in the circumstances. The quryv «ball ther

retire and consider the pemalty to be imposed and render such ver

fet Fespecting it ay thev shall apree upon. Affetliure of the mery ft

agree upon the penalty to be fmposed, shall fot he held’? }

or in any way affect the validity of the verdict already recorded, ana

whenever the court -shall be of opinion that further deliberation ty

the Jury-ewill not result in’ an agreement upjon the penalty to be

imposed, it may, in it~ discretion, discharee the jury from forther

consideration thereof, in which event if ne retrial of the indictment

is directed, the court shall sentence the defendant to life imprison

ment upon the verdict theretofore rendered bvithe jury. and recorded

as aforesaid, The court shall impose the sentefice so fixed as in offer

eases, .

0 f I.

. , ~

Pees ke ee oe

- Under that portion of the second paragraph of Section

701 of the Criminal. Code of 1939 quoted, the Jury had’ the

duty of determining thetpenalty when, as in Scoleri's cxse,

they convicted. a defendant*of first degree murder, The pre-—

cursor of thé statute referred to was the Act of May if.

1925, P. L. 759. The earlier Act need not be quoted-here Tyr.

insofar as the essential elements of the instant case are con-

cerned, its substance was the same. In respect to its effecs,

Judge Maris of this court, in United States es rel. Thomp-

son V. Price; 258°F. 2d at p. 921, correctly and suceinetly

stated: “The Act of 1925 was interpret ed by the Supreme

Court of Pennsylvania to permit the admission of evidence

of prior {unrelated | convictions -sole! y for the purpose of

enabling the jury, after it has found the accused guilty of

first degree murder, to know what manner of man he is and

whether h@Ts entitled to merey when they undertake their

task of deciding what penalty should | ve Imposed upon him.”

See CommonWealth v. Parker, 294 Pal 144.01) a1, 155, 142

Atl 904, 986-907 (1928), in which Chief Justice von Mos-

chzisker considered the effect ufon the admissibility of évi-

. . . . a

dence of prior convictions under the Act of the rule? o}

* evidence that, in the trial of a defendant for a crime, evi-

dence of other independent, unconnected offenses committed

by him is net admissible to establish his guilt of the crime

for which he is on trial. As Judge Maris stated, id, sun,

ai p. 921, “The Chigf . ~~ stated thatusince thé statute

required the jurors to Ussess the punishnte nt and permitted

them to extend mercy in a proper case bY reducing the pen-

alty_to life imprisonment, the jury should be permitted to

ha¥e the same sort of information that a judge’ considers

when he decides as to the punishment for crime. But since

in Pennsylvania the jurors may not render gjec ‘meal ver-

dicts there is no provision for separzte inquiry. Hence. cor

cluded, the Chief Justice, their single verdict must “include

both ‘their finding as to the defendant's guilt and their de-

* termination as to the pen: ilty to be ‘imposed upon him.”

Chief Jusiice voi Moschzisker concluded that the preser ited

statutory practice Was a permissible and Pers one.

1 4

* ’

. x on

: 3 a = : ’ ~ i ‘e

: : 1 & a

@. . 35 rh, ,

R ° - F

This ruling was follgwed by the Supreme Court in later

cases’ and, until the amending statute was passed, was the

law*of Pennsylvania.” PL wis) as we have stated, followed

at Scoleri’s trial, despite objections, and was approved by

‘the Supreme Court of Pennsylvania on appeal by a votesof

7 Justices jo three. See C ommonweaith . scoleri ri, 3yy

Pa. 110, 160 A. 2d 215 61960). We reiterate that. in United

States ex rely ‘Thompson v. Price, svpra, this court, with two

judges dissenting on petition for reheaving, held the practice. .

nat to be a violation of the syindards of fundignental fair-

> ness required by the Fourteenth Amendment! In the case

last eited, Judge Hastie. in a concurring ypinion, mude it

clear that he woudd have dissented if the record “of Thom? 4 ©

son's conviction by «a court martial had net -been admitted

- into @vidence mot only without objection but with the consent

of defense counsel, In the instant case there is no dispute

that the record of Scole¥j's twenty-tive prior unrelated con-

victions of, or pleas af guilty to, charges of robbery with

Violence Was objected to on the grounds of violation’ of the

guarantee of due precess; it is also phe that these objec-

“tions i ad} here to throughout the trial, were asserted in

the Supreme Court of Pennsylvania, in the Supreme our" * ee.

of the United States and in the court below.

- The appellee assets that Scoleri himself opened the

4 door to the admission in evidencagot his cviminal record’, and —

thereby, in effeet, waived ‘his rights under thé Fourteenth

Amendment. The appellee relies on five ingidents which oe-

curred at the: trial, Furst, the appellee spoints to Scoleri’s

. ; 3 e

See Commonwealth vo. Thompson, 380/Pa. 382. 209-400, 133 A

2d 207, 216 C1857 , certiobari denied, sie US. 849°: 19475, arth

’ decisions cited in the text’ The practice was Kaew os the “Parker

Rule’,

. “We deem it unnecessary to ‘discus- this opimion the Act of

March 15, ype P. 1. 26, 19 PLS. Section 711, or the Act ig lates 22

1947, P.O. 1239, held ginconstitutional in Commonwealth vo De Poff.

3H Pe 22,066 Al 2d HIG TI, certiorari denied, 238 : P S5v

‘ 1046 some |

ea ;

‘ 9

: S: »

% 3 36

testimony on direct examination eotcerning his desire to

take Ricky Woods, one of the robbers who had been shot in

the hold-up, to the hospital. At this point, he testifged, Dante

_Sceolerj, his brother, told him: “Tony, with your record they

will never believe you weren't thege”. |P-1, p. 715| Second,

Scoleri also testified on direct examination that when he was’

asked for help by. one of the men who had engaged in the

hold-up, he said: . I told him I had my baek time, ‘30 .

years—30 years ce hanging over my head, and there

"wasn’t much [ could do without becoming involved.” i P-1,

p. 717) Third, when Scoleri was asked by “his counsel who

Richard Febg was, he replied: “Richard Febo was my ac-

vomplice when we were arrested in 1948 for a series of

armed robberies.” | P-1, p 729) Four, the appellee asserts

that Doctor Anthony F. V&squez, pastor of. St. John the

Baptist Church, in Philadelphia, testifying on Scoleri’s be>

half made reference to Scoleri’s criminal recerd, to his im-

prisonfient and to his'- ing on parole. [P-1, p. 872] Fiye.

that Ida Ioeco, a witness called on behalf of the-State, testi-

tied on cross-eXamination in reply to the question who is

Febo, ‘He is a, friend of. Tony's [{Scoleri’s|. He was in

prison with Tony, I understand, I was told.” | P-1, p. 470!

The appellee points out that Scoler#’s eounsel -made no ob-

-jection to this statement by Iocco. .

* But the first attempt at intvoduction of evidence, relat-

ing to Syoleri’s.eriminal record was at p. 489 of the tran-

script of his trial and, its first admission was at p..4190 over

Seoleri’s counsel's objection. A defense motion to withdri@v

a juror was then denied. The forma introduction of Scgleri's

record of twenty-five convictions of or pleas of guilty to

armed robbery was at pp. 626-633 of the transcrip’. At this

poj nt the fat had already been put in the fire and the only

.state ment respecting imprisonment or crimes of Scoleri pre-

ceding ‘pp. 626-633 and 189-490 was that of Ioceo who said

at p. 470 that shethad been ‘pid.vhat Febo and Scoleri had

been in prison together. True, Scoleri’ s counsel or the prose-

ecuting attorney should have moved that this hearsay state-

ment be sgricken from the record or the alert trial judge

should have done so sua sponte, We cannot treat fhis hear say

. : : - , ae ° _@

evidence as a waiver of constitutional rights by-Scoleri or

construe it as an escalator to precipitate twenty-fiv® convic-

_ tions of or pleas of guilty to cgarges of armed robbery into

the record. Putting the matter bluht iv the appeliee’s argu-

ment seems to have been advanced as an afterthought. It is.

totally lacking in validity. We cannot deem wright inhering

in a defendant by virtue-of the Due Process Clause of the |

. Fourteenth Ame ga to be so “easily waived. Glasser v.

United States, 315 U.S. 60, 70 619425. ®

In respect te the. Kabitaat criminal statutes and their

applicability, We point out that we are dealing here with a

death sentence. The danger resulting from prejudice is

always enhanced infa capital case: passions run high. and

the penalty i$ irreversible. Under the habitual criminal stat-

utes the Supreme Court of the United States has permitted

evidence of prior unrelated crimes to come before a jury.

But the admission into evidence of these prior convictions

could, at most, subject the defendant to an additional prison

term as a récidivist, The case now before us involved a trial

for a capitat crime, a crime punishable by death. To say that

such evidence is permissible in the former situation and

therefore a fortiori in the latter, is to ignore the crucial dis-

tinction between a trial which could. result only ina prison

sentencesind ore Which could and in this case did lead to the

imposition of the death penalty. The Supreme Court has ree-

ognized clearly the validity of this kimd-of distinetion in

Betts v' B rady,, 316 U .S2 455, 462 61942). It was there held

“that although due process does not. require that an indigent

defendant be furnished counsel in a non ‘apital case, where

the crime is one punishable by death counsel must be pro-

vided. The Court stated: “That which may. in one setting.

’ constitute a denial of fundamental fairness. shocking to the

universal sense of justice, may, in othér circumstances, and

in the light of other considerations, fall short of such denial.

In the application of such a concept, there is always ‘the

dangewof falling into the habit of, formulating the guaran-

tee into a set of hard and ffist rules, the application of which

in a given case May be ‘o ignore the qualifying factors

“ ¥

- - . *

> j 2

. -

° °

Pe 38 Bee ae

. ~ °

therein disclosed.” We think that the principle so well illus:

trated by the decision in Betts v. Brady, supra, is applicable

at bar. ,

This court, as presenta constituted, limits the .position

that it took in United States ex re]. Thompson v. Price to

cases in which the defendant did not object to the admission

into evidence of his prior record of unrelated criminal con-

victions: The issue before us was well put by the Supreme

Court in Michelson v. United States, 335 U.S. 469, 475, 476

(1948), where it was stated: “The state may not show de-

fendant’s prior trouble with the law, speciiic criminal acts

or ill name among his neighbors, even though such faci

might elie be ap spretie thar he® is by propensity a

probable perpetrator of the crimg. The inquiry ‘is not re-

jected because ¢ ‘hi: acter is irrege vant 2on the contrary, it is

said to Weigh too much with the jur yeand to so overpersuade

them as to prejudge one with a bad general record and deny,

hima fair opportunity to defend against a particular charge.

The overriding policy of excluding such evidence, despite its

admitted prebativg value, is the practical experience that its

disallowance tends to” prevent confusion of issues, unfair

surprise and undue prejudice.”, citing 1 Wigmore, Evidence

“(3rd ed., 1940) Section 57, | _&

Despye the careful charge of the experienced judge

presiding. at Scoleri’s trial, in which, he explained to ihe

members of the jury their function of finding the defendant

guilty or not guilty of murder and their separate function

of fixing the penalty of death or life imprisonment, we can-

not believe that the proceduyal scheme imposed by Secfion

701 of the Criminal Code’of 1939 and the “Parker Rule”

would permit the jurors to put the, knowledge of Scoleri’s

twenty-five.convictions or pleas of guilty out of ——

while considering his guilt or-innocence. Certatnly such a

feat of psychological wizardry verges on the impossible even

for berobed judges. It is not reasonable to suppose that it

could have been accomplished by twelve laymen brought

7 eee s 39

together as a Jury. The admission of such evidence in Scol-

eri’s trial must theréfore be deemed to have been gravely

prejudicial. We conclude that Scoleri’s trial in this respect

Was sogsundamentally unjust as to cause the trial court to

lose jurisdiction, Johnson v. Zerbst,,304 U.S. 458 61938).

The conclusion that Seoleri-wes overreached by the proced-

ure followed az his trial is irresistible. Cf. United Sures ex

rel. Almeida v. Baldi,95 F.2d 815 65 Cir. 1951 pga

{

denied, 345 US. 02 119550. Me Justice Burtol pat the

answer to our prese nt inquiry succinetivy when he stated “im,

bute Vv. Tlinois, 35 5_—h7. 3. O40, GIy | }Q4GN5, that due process

nate the Foufteenth Amendmen?” nas reference

toa standard OL process that may coyer many Varielies of

Processes that are eAPressive of differing combinations of

nistorical or modern, local of other juridical standards. pro-

sided they do mov con Her with the ‘funtlamental principles

_of liberty and its: tice which lie at-gge 4asé of all our civil

ane politic al institutions. . . = > if. the conflict ix obvi-

ous and glaring .

The judgment of rie court below will ‘be reversed with

=ne direction <0 rant the writ of habeas cor use The Su-

perioy Court‘of Pennsylvania has held that no issue of

‘double’ sooata can-be raised urdes the circumstances.

Commonwealth v.. Townsend, 167 Pa. Super, 71. 76-77. 74

2d TAG, TAY CE LOE, certiorari denied, 340 US. 915

1519." Scoleti may therefore be promptly retried by the

Commonwealth. The “Split-Verdie: Act” of December 1,

1959, 18 PLS. Section. ATO tSupp.). will, of. course, be

ean, | es, .

applicable. : .

Inde (Tanne it pereeet fetter teed : the eta siders vr} os

hie ¢ se lave diva] veer eget ba a) th Filo vyer of th: a) re gy

hk We | 4 ! ' Pn a f Vj "| - +349

127 A.2d ono 1 ceortiogio? y ee i 105% Tom

risvenil +r! Townsend v. Burke, 26% Pa. 34, 41,.63 A.2d-97

et ee be b Commeonwet% + re", Wallace v.. Burke, 169 Pa

“yer. O23, 050. 84 eT 254. 25D 1959) > Commonwealth wv. Gibbs

167 Pa Sure. TW Sed Tb Ad 759, 752-75 1950

° ‘

. ms

= »

_” — KALODNER, Circuit a dissenting :

: I dissent from the majority’s disposition for two rea-

sons: .

-. (1) I disagree With its holding that the Pennsy!-

vania procedure under which Scoleri was tried trans-

gressed the bounds laid down for state procedure by

the due process clause of the Fourteenth Amendment,

and

(2) I disagree with its holding that Scoleri did no:

Waive the protection ‘which the majority says was ac-

corded him by t the federal due process clause.

It must immediately be roted that.in condemning a>

an abuse of federal process the Pennsylvania procedure

pursued in the Scoleri trial the majority is overruling

and not merely limiting, as it asserts-—our express ruling

to the contrary just four years ago in United States vy. Price.

258 F.2d 918, 922, cert. den. 358 U.S. 922 619581. In Price,

_ “We conclude|d} that the Pennsylvania procedure here un-

* der attack does not pass the bounds laid down for state

procedure by the due process ciause”. We prefaced tha’

holding with the statement that “It is well settled that no

particular form of procedure in state criminal trials is guar-

anteed by the due process cleuse of the Fourteenth Amend-

ment”, and cited in suppost the teaching of the Supreme

Court of the United States that “it has long been recognized

as the very essence of our federzvlism that the States should

have the widest latitude in the administration of their own

systems of criminal] justice.”

THE DUE PROCESS ISSUE:

Whiie this Court can overrule its prior holding in Price.

it can not overrule, nor can it reject, the teaching of the.

Supreme Court to which we gave effect four vears ago in

that case. .

fe)

The case books abound with instances in which the 5

preme Court has appbed the principles stated in Price.” A.

year ago, in Cohen v. Hurley, 366 U.S. 117 (1961) it was

held, for example, that exemption from compulsory self-

incrimination is not safeguarded as aguinst state action by

the Fourteenth Amendment. In Cicenia v. Lagay, 357 U.S.

504 (1958) it was held Pai the refusal to permit one ac-

cused of murder the privilege of consulting bis counse!

2: while being questioned by State Police between arrest and

arraignment did not of itself violate federal due process.

It is interesting to note that in the case just cited this court’=

ruling to the same effect was affirmed.

In Twining v. New Jersey, 211 U.S. 78 61908) it wa-

held that putting the accused on the stand as a witness for

the State did not violate federal due process: in Maxwell v.

Dow, 176 U.S. 581 619008 @ provision in the Utah Consti-

tution for a jury of eight jurors in all state criminal prose

*eutions, for other than capital offenses, was held beyond

the reach of federal due process; in Hurtado v. Peopie of

California, 110 BUS. 516 ¢1ss40 it was neld that federal due

process does not require an indictment by a Grand Jury

a prosecution by a State for murder.

Well over half a century ago, the Supreme Court, i:

Rogers v. Peck, 199 U.S, 425 61905) in discussing the sweep

of the federal writ of habeas corpus said (pp. hands:

“The extent of the right of the Federal court~ to inte

fere by the writ of habeas corpus with the proceeding-

of courts and other autherities of a state is carefully

detined by statute. When a prisoner is in jail he may

be released upon habeas corpus when held im voolatior

of his constitutional rights.

“The reluctance with which this court will sanetior

Federal interference With a state in the administration

of its domestic law for the prosecution of,crime ha-

been frequently stated in the deliverances of the cour

-In the Matter of the Appiication of Vinmeent Cocemia fer

Writ of Habeas Corpus, 200 F 2d S48 Cir 1957

— As .

ad —-— :

42 aa

upon the subject. /t is only where fundamental rights,

specially secured by the Federal Constitution, are ine ~~

raded, that such interference 1s warranted.” tempha-

_ ‘sis supplied)

In Snyder v. Mass., 291 U.S. G7 11934) Mr. Justice

Cardozo, speaking for the Supreme Court, spelled out the

doctrine under review as follows (p. 15+:

~-—-___Jate the procedure of its courts 1 accordance with Its

own conception of poligy and-faieness_unless in so do-

ing it offends some principle of justice so rooted in the,

-raditions and conscience of our people as to be ranked

as fundamental. Mae aa f proced ur ‘does pot run foul,

of the Fourteenth Amendment hecaitae another method

‘may scem to our thinking te he fatrercor wiser or to

give a surer pPronise of prete ction to the prison rat

har” ‘emphasis suppjied !

The latter statement is particularly pertinent’ hete in view

of the fact that the majority opinion makes it clear that its

condemnation of the Pennsylvania trial procedure whieh

permitied introduction of Scoleri’s prior criminal record

for the avowed purpose of guiding the jury in the fixing of

° sentence in the event of a guilty verdict ix premised on its

conclusion that the practice Was “gravely prejudicial” to the

extent that it was “fundamentally unjust” and resulted in

Scoleri being “overreached”. ;

The majority has disrgearded the repeated admeni-

tions of the Supreme Court that individual judicial rotion=

and concepts of “unfairness” and “prejudice” and “runda-

mental injustice” with respect’ to State Criminal procedures,

no matter how appealing to the American sense of fair-play.

‘< not the critical test to be applied in the application of the

federal due process clause.

In Bute v. Hlinois, 333 UL. 640 C19 ds) which the ma-

jority has cited in support of its disposition, the Supreme

ae : P nati 3 =e } ae TP at . . ae Se Ie

The Commonwealth of Massachusetts Is free to regu-—-—

Court recognized and appiied the long-established doctrine

that States “should have the widest latitude in the admin-

istration of their own systems of criminal justice” and held

that the reach of federal due process did not extend to the

failure in a non-capital case of a State court “to inquire as

to the petitioner’s | accused's | desire to be represented by

counsel, or his ability to procure counsel, or his desire to

have counse] assigned to him in his. defense “or to offer or

aSSigi counse! tO the accused, :

In so holding the Court said (pp. 649, 650-51-52)

“The Fourteenth Amendment, however, does nov =as

wt no state shall deprive any person of Tberty with-

it following the fedeca! process of law as prescribed

for the federal courts in comparable federal cases. 1

says merely ‘nor shall any State deprive any per-on of

life, liberty, or property, without due proce-s of law:

’ This de process is not an equivalent for the

process of the federal courts or for the process of any

-particular state. It has reference rather to a standard

of proce ss that may cover many V: arieties of processe>

th: it are exp ressive of differing combinations of his-

torical or modern, local or other judicial standards,

provided they do not conflict with the ‘fundamental

principles ai rite ‘and justice which lie at the base

of all eur civil a ind | polities! institutions. . ...° This

clause in the pias “nth Amendment leaves room for

much of the freedom which, under the Constitution of

the United States and in accordance with its purposes,

Was originally reserved to the states for their exercise

of their own police powefs and for their control over

the procedure to be followed in criminal trial= in their

respective courts. [It recognizes thar ditferences arise

naturally betWween the procedures in the state court-

and those in the federai courts.

“One of the major contributions¢to the science of gov-

ernment that was made by the Constitution of the

United States was its division of powers between! the

—

states and the Federal Government. . . . While there

have been modifications made by the states, the Con-

gress and the courts in some of the relations between

the Federal Government and the people, there has been

no change that has taken from the states their under-

» lying contro] over their loca! police powers and state

court procedurés.” :

This Court, in United Se ex rel. Darey v. Handy.

294 F.2d 504 (1955), aff'd 351 US. 454 61956) gave cog

-nizance to the “established constitutional doetrine™ of “ou!

limited function-in correcting fundamental impropriety.»

state trials challenged under the due proces= clause” anc~

said that it “makes it necessary that we leave alone mars

dubious occurrences in state procedure which.we would pro

scribe if they should happen in a federal court”. ‘emphasié i

supplied) — Mi

The majority has prefaced its holding that the intro;

duction into evidence of Seoleri’s prior criminal record Wa>

“gravely prejudicial” and ‘so fundamentally unjust” as to

constitute violation of federa! due process with citation o!

Michelson v. United States, 335 U.S. 469 (1948) and quota-

tion of a statement therein thai “The state may not show

defendant's prior trouble with the law, specific crimina:

acts, or ill name among his neighbors, even though such

faets might logically be persuasive that he is by propensitl;

a probabie perpetrator of thé crime.” ‘emphasi= supplied a

It must immediately be stated that in Michelson the

issue of violation of federal due process in a state crimina:

trial was not involved. In that case the defendant had been

tried in a federa/ court for the bribery of a federa! officer

and since he had admitted the payment but claimed it wa-

induced by the officer the case hinged on whether the jury

believed the defendant or the officer. The federal prose

cutor in cross-examination ©. defendant's charatter wir

nesses asked them if they had heard that defendant had beer.

arrested 27 years previously for receiving stolen gods and

. Me

te experienced yudge presidi ng at Scoler#s trial gave the

45 i ;

‘ z «

the issue presented lo the Supreme ¢ ourt Was whecher, Une

questioning with respect to the arrest constituted rey ersibie

error,

The statement in WMreneison that evidence of an ia

cused’s “prior trouble witht the law’ or “specific erimina

acts” Was Inddmissilne Wo establish “propensity” to crimina

conduet Wis made in the course of a genes discussion ot

rules of evidence relating to such lestimons.

Michelson in compiecels inapposite to Ube siUuacion ner

fithe Instant case the Pennsvivania procedure under wijier

seoler) Was tried permitted the imcreducuoneol evidence o!

= . ‘

his prior crimina record nev to establisn “propensity” bur.

for the single purpose of aiding the jury in its funetion,

under Pennsvivania statute, of fixing the penalty. view life

imprisonmen: or death, in tae event Laat it found him guifts

ot murder in the first degree. As the majority has noted

jury a “careful charge’: in whieh he. as required py the

Pennsyivania decisions, properly cautioned if Wilh respect

the limited use of the crimini. record l@stimony.

_The majority ha decided, neverthteiess, that i would

Det “feabef psyenologica! Wizards Impossible ever

for berobed Widges” for jurors “ip put the knowledve of

. ee 2 — * : ° e " . . .

Seoleri's twenty-five convictions or pleas of guilty out of

their minds ge considering nis guilo er innocence’ and

therefore holds the Vennsyivania procedure i violation of

federa! due conn ° :

- In doing so 1 nak completely Qveriooked the fact tha’

“he ‘Supreme Cour: of the United States Has time and agar

sanctioned the admission of priory criminik. record. tor tne

nurpose of fixing the more serene pupishmer’ pres ded un

der multiple offender and habitual erimina. statutes

lt has also overlooked the fact that under the Nationa:

Prohibition Act, 27 U.S.CLA, 246. which fixed heavie® sen

tences for second violations and provided that a prior con

viction shouid -be pleaded in the “affidavit. intormation o

indictment” charging the second offer=g. this Cour: held

that introduction of evidence of the prior conviction at the

tria! for the second offense was not only permissible bu’

required. Hefferman v. United States, 50 F.2d 554 (19510. |

Habitual criminal statutes providing for greater pun

ishment of second or subsequent offenses by the same per

son have long been in force in this country ' and in Eng

land. It is the éstablished rule, under such stitutes, unles-

the statute designates a different mode of procedure, thi!

if the prosecutor desires to invoke the more severe punis!

"ment provided as to secon or subsequenv offenders, the in

“ity, tictment or information must allege the fact of the prior

% onviction, and the. allegation of such conviction mus’ bi

proved in the trial to the jury. ‘ as

The Supreme Court, as lohy ago as 1805, held in Moore

v. Misdouri, 150 US. 675 that a Missouri habitual crimina’

statute was not in violation of the Fourteenth: Amendmen’

or any other provision of the Federal Constitution. In dome

- so it stated (p. 6771: |

“The fact that the indictment charged « former con

vietion of another and entirely different offense is no’.

in fact, charging him with an offense with respec’ of

the former offense in the case in hand. The arerment-

an to the former offense go as to the punishment on 4 2

_temphasis supplied |

Six vears later, in 1901, the Supreme Court in MeDor

ald’v. Massachusetts. 180 U.S. 311, in holding that the

Massachusetts habitual criminal statute, which provided

for charging a former conviction in the indietmen:, did /no’

violate any of the provisions of the Fourteenth Amendmen'.

rejected the appellant’s express contention that “Any sta’

ute allowing the government to make bad character a par:

of its original case is unconstitutional.” In doing, so the

* Supreme Court said (p. 3151:

'To the same effect.” Massey v United States, ZI Fed. 2

296-98 1% Cir. 1922); Smith s United States, 41. F.2d 215, 217

eg Cir] 1950), cert. den, 282 U.S. avy

‘in Virginia and New York «a. early as Tite pndoin Mas>

chusetts sitfee TS04

<Sco

“The allew: ition Of previous convictions is meta distin

a charge of crimes, but is necessary to bring thy cas i

within the statute, avd ques te the psn beh aaa :

remphas:s supplied , “

in Grahamev. West Virginia. 221 U.s obec dad:

wis held (pop. HUBS 4 f

“"Althoug! t proper[ys pyovide FOr thie ge:

Jegution of the ees i GORVik ‘LION AN the Mieiete, be

a finding by-tt® Jury on this pains in connection wat

its Verdict as to guilt. and thereupon Por tee impas.t ior

of the run. sentence prescribed, ther Is No constitu

tional mandate which require the state to adop) th

COURS: ever wher >the former convict iON is, brow) }

may be convent lent practice, but it is neo obilgater

[nis conclusion necessarily follows fron. tee distin

nuture of the issue and from the fact,.so frequen’

stated, that it does not Felate to the commissfon of the

offense, bur goes.te the punishment omy. amd tier

fore it many be subsequent!y decided j ne

° - .

“A state may mako/ differen, arrangemer? 5 bs

under ditferen® cryvcumstan@s of eve 4 <n

of offense.” /

The Sicriccetis Hiustrates the teacBing ef the Supren

Court that the choic# of methods for the conduct ef erin

nal trial eager: insofar a= they may re das the orde

of the introduction ofevidence having imi on the @ritic:

issue of sentence is reserved to the separatestate sand:

the freedom of such choive fs net proscrithe furcder toe bon

reenth Amendmén'‘

Acddonuslir t causes ne S (

ple and habitual offender ievws hav prrense

¢ evidencr 7 pricy convietions before the det

cense of fie sibsequen! oftens: hus been uvtogy :

See, ew, Sta « Me oS WW : W 2 i! !

Ath Sti 4 At pS “3 Ee ! i

; - c ;

ease ’ i 9 - . 4 %

* Finaliy, on the score of what has been said it must be

noted that this Court im United States v. Claudy, 204 F.2d

624 (1953) gave effect to the holding in Pennsylvania Vv. 6

Ashe, 302 U.S. 51, 55 11937" that?

“For the @termination of sgntencess justice generally

4 requypres consideration of most than the particular acts

Shy Achich the crime “was committed and that there he

token into Recount the circumstances of the offense to-

A ther with the character and, propre netics oF the OF

P » Z P e . ~ " ;

fender, His past may be taken to indicate his presgnt —s

purposes and tendencies and siqnificantly to suaquest

€-

the period of restraint and*the kind of discipline that $

‘aught te be imposed pon him.” vempirasi= supplied +

4 * pred! ;

> In Claudy we in fact held that “fundamer tal. fa?rness

nGudicial procedure required that the court-mpose_ an en-

hanced penalty only, upon the basis of a supporting Judicia!

. ,determination ef the essential facts made after the defend--

ant had been informed of and heard upon the issue of re-

-idivism” and that “The omission ef such procedure Was 4

4 denial gf due pwocess of law... .” 204 F.2d 6290 0 0 ™

‘ AR analysis of judicial decisions discloses ehat the

‘ courts havevaisé permitted wide latitude in the adiyiss or

‘8 of evidence relating to crminaggzonduct of ar accused, in-*

dependent of the crime charged in the indictrént. when .

evidence of such conduct was iptroduced to establish “‘in-

tent” or “desigi” or “capacity” or “identity” of the actor.’

Thus. in United States v. Laureili, 295 F.2d 830, cert

den, 368 U.S. 061; this Court justea year ago, in a triag

charging bribery attympt. sanctioned introduction of testi-

‘ mony of unrelated bribery aftympts by the same defendant.

one. eleven menths. and the other, fourteer or th fteen

—

wrenee, BOO TL J9%, 61 NUB.2d 261 1955:. cert. den. 226 US

. - ; @ bi gegrt ' Ji gies +1 iy ~ WW ” j iy by 4 145] ew? ie? eee

~ sj) %

United Stutes v. St:rone. 262 F.2d 571, v0 Cir, 145%, res

ra or other grands. 261 1S. 242 : Tie

v s

. Months, after the brihery

ment, on the ground that

missible “to shows defegdan

293 F.2d-x3z

Evidence of other similar offenses has-time and agui!

beer) he'd to ye odimiss]

mtent In cuses OL assault wit!

jhe ftir

tions gor crimes inveiving a

‘

nts

nou

the

duct has also been held admissible.

bes on 77

A rain. efendants si

character testimony ops *}

prior criminal’

What has been suid on

record-

“designed to show jpropenst

“eeptions are aimost as verers

At a IW pate. as it was

eviminu!

sean

ie doe

Fie

f nukes

said

1) ies

the

aw. State? 67 A.vd 407, 510, 193 Md.

338 U 8. 972 61950. -

66 - . ¢ . + .

Without questioning the soundness of the rule of es-

clusion prior to verdict,

" «4

« Here ‘the major’ hus

arule to the hal! owed status

deprived

prosecutions for adultery evidence of prior adit

stile

‘ Pd ah A _@

the venera: rue which exc ude- vide!

iN)

ten? to rayne

attempt charged 1

the subsequent con i wt Was

and

hUMpOse of

it cae

144%

i the indict-

a *| ratte

Rati mie

gs isti ati

11% cee

hase $s

ow offer

iitroduct.ot

seh

i OP ‘ } ;

Radio Snow

the es

“er?

det

al-

so aS,

t. s

establish:

TerOseciu-

rin

ies

it remgins a rule of evidence

not. a constitutional right.”

@¢xXait

tro

; ‘

. . .

Of a cohstitutior

sae

ey ident ? ld 7"

and its action in oe sOois without precedent

In conc] Psion, this tou must te suid on th

Pennsvin

2% ¢

ree oF feeders

the deni:

majority's holding that the

sued in-the Scoleri trial viel:

; P ben it is true that

cerfidtari by the" supreme

not th he construed

in recert

Cases > jt

ee apy

uding that of: See

26 Iigmore, Bi idericg ora

-* -

app ray

cat

“ouyt

Nery,

ai Oo

reviewed, Moat least merits obser

ons

Vaan.

ifn.

uu here

Supreme Coir had sustained convict

4, 46

oe?

#¢ SCONE

moi

of tt

‘

Puaran tee

ste?

procedure pur-

Ake

appleation f¢

1 OM eee

te)

tcorhe

=the sit

Court ha-

“ASS

eet

eid ¢s

‘? (be

<9 te

tried

~ rh) *

—. rar :

pursuant to the procedure now condemned by the majority

as in Violation of federal due process, and in Thompson v.

Price, supra, where we specifi@ally held that the procefure

involved was nov in violation of federal due. process. On

this score it certainly cannot be said that the United States

Supreme Court has imyecent years failed to evidence ade-

quate appreeiation bry. vitality and sweep of -the federal

due process clause. It merits notation that in only ove of

the cases in which certiorari was denied, Commonwealth

’

-y. Rucker, sub. vom. Rucker v. Pennsylvania, 368 U.S. 565

119611." one justice expressed an opinion that it should

have been granted.

* The ter application denied. including that of = ‘oleri, are as

follows: .

Commonwealth vo Simmons, 6) Pa. DOD 19at). corthadenm. oes ts

S62 (death sentence imposed ’

Commonwealth v. DePofi, 362 Pa. 22: poe cert, dem. obs Go

s52 (death sentence imposed

(Gmmonwealth v. Jehnson, 372 Pu. 20%, 296-77 Wo. es den

ia aa ep

345 US. 050 dife impr: onment imposed re

Commonwealth vo Lowry, tg Pa. 510005 619555. cert den, BAT

AUS. O18 life imprisonment imposed r

Commenweaitu +. Cannon, 386 Pa. 62, Hie 156 . cert. den. 352

US. sus life impA<onment ir posed ° :

Commonwealth vo Theimpson, ose Pa. 282 (1957). cert. cen nO

Us. S49 eath sentence imposed

Commenwensith ex rel. MeNeair v. Banmiller, 301 Pa. Tit «ox

cert. den. 356 US, 946 ‘life, imprisonment imposed ©

‘ommonwealth v. Wilson, 394 Pa. 988. GOs 1950), cert. den O61

CS. xi? life impejaonment imposed :

‘Commonwealth v. Scaleri, 390 Pa. 110 1960, cert. den 64 U.S

S19 (deach sentence imposed , 2

‘ommonwe: Ith v. Rucker, 403 Pa. Sp 1d GO. den. 268 US

“GX (death sentence imposed)

in addition the Supreme Court denied the application for certiorari.

ese £28. 022. frem or dgeision in United States ex rel. Thomp

eon x. Price. 258 F.2d 918 11958 helding that the Penpisyl

vani4 pre edure ‘ere imnveived. Wei- yer aN sibetise of foderul citie

‘Appeal is now pe neling im this OQurt from the denial of a

writ of habeas corpus by the United States District Court for the

Fastern District of Pennsviven ggg United States ex rel. Herman

o . D1

: THE WAIVER ISSUE: — -

The majority holds that Scoleri did not, at his trial,

Waive the protection which it says was accorded him by the

federal due prracess ‘clause. [It dismisses as “totally lack-

“ng in validity” the contention of the Commontea!th of

Pennsvivania, via the appellee, to the contrary.

T disagree. o- es

Assuming, arguendo, that the majority nas correctly

held’ that. the admission inte evidence of Scoleri’s criminal!

record, over his objection, in the couse of the prosecution’

casp, Was fundamental error violative of federal due proe-

ess, the trial record establishes that Scoleri waived or cured

ethat error when he invoked his criminal past in the pres-

entation of his defense. as subsequently detailed.

On that score, it is settled law that federal due procens

ti may be waived “intelligeng! y and urnderstanding/y

Carnley v. Cochran. 360 US. 506, 515 +1962>. and

whether. such w waiver has occurred “must depend, in each,

case, upon the particular facts and circumstances, sur-

rounding that case, including*the background experience,

and conduct of the accused”, Johnson ve Zerbst, 304-ULS

158, 464 19580: further. an error in the admission of tes-

timony, over objection, is cared when the party injured

thereby subsequently offers similar testimony in his*own

defense, 1 Wigmore. Evidence, 218) D) 63 ed. 19400:

otherwise stated. “If i, happens that a party who hae ob-

jected to evidence of’a certain fact himself produces evi-

‘dence from his own witness of the same fact. of course. he

has waived his objection’. MeCormick, Fvidenve, 255. at

120 (49540. | : » :

. First, as te the “background” and eXperience’ of

Neoleri : ;

tucker v. Myers. 200 Fo Sump. 557 1001 | The proceedine® im the

District? Court were filed <ab-cauent te the ds aE Rycker’~ appl

cation for «crtionort bw the Pniied State. Sopreme Coourf, supra,

™ ’

nte & rf ¢

The record discloses that he was almost 30 years old

at the time of his trial; he had earlier served some :

years of a 20-40 year jail sentence following pleas of guijfy

in April 1948 to indictments charging him with partici-

pation in 22 separate armed robberies; after getting out of ©

jail he worked for a year as a secretary. to Dr. Vasquez,

a Baptist minister, and then completed one year of study at

a-liberal arts.college in West Virginia; he had been a Sun-

day‘ school teacher and had served as vice-president of the

‘outh Fellowship of his church which he attended

gularly. ee | e

Second, as to Scoleri’s “conduct” at his trial:

When Scoleri took the stand in his,own defensé, his

counsel, Colone] Colbert C. McClain {a former assistant

district attorney-|, almost immediately proceeded to. @X-

amine him with respect to damaging state’s evidence that

he had given shelter to one Ricky Woods who had_ been

wounded by a pistol shot while participating in the rob-

bery-murder for which Scoleri was being tried and that

Woods had died without receiving any medical attentién

and was subsequently giver. furtive burial by Scoleri and

his brother Edward '’ in a shallow grave which they dug

with improvised implements in a wooded area in New Jer-

sey. Scoleri readily admitted the truth of the state’s evi-

dence ‘as outlined, and, in-the course of doing so, gave the

following “explanation” of his failure to take Woods’ to a

ae when he was unable & get a doctor to treat him:

I asked Dante [Scoleri’s brother| to take

Ricky. and me to the hospital to get some medical at-

tention, and he exclaimed, ‘Tony, with your record

they will never believe you weren't there. You can't be

involved @Doh't get. involved,’ _he screamed.

. Sivird Scoleri had also been indicted as a participant in the

robbery-murder‘but had been granted a severunce (separate trial

on his application. He subséquently pleaded guilty and was sew-

tenced to life imprisonment.

“

- u

. 4

> e é 53 2 . ,

¢ , &

“gs “I said, ‘The man needs help.’

“He said, ‘1 don’t want to-have anything to do

with it. and [ suggest you don’t have anything to do

with it.’ | P-1, pp.714-715 |

With respect to his participation in Wood's macabre

burial..Scoleri, in repsonse to his counsel® question: “Why

did you do that: Ton”, made this re ply:

“Eddie. was a total mess. He was.in a stupor, He

had been drinking rather heavily oan the apart-

ment he wes drinking even more, and he was com-

pletely numb: He didn’t know what to do, and he beg-

ved me to help him. He siti, ‘Help me, Tony.”

SERS Sul fold Wim [ had w 4 Insel: fe Wie, FOOT S

4 ted 1 i x por ole jaan “pir 4 Oey gee hi ad, and th were

we Wasn't mt ich ] cou! ld do without becoming invyNed.

“Eddie broke down and cried, and } + said, ‘I don’t

know what to do.” ‘?-1, pp. 715-717 |

4 e ‘

_ After Scoleri’s counsel elicited the informatio® that

Edward was his “baby brother” he asked him:

Q. “Did you Want to help your brother?

A. “I did? sfy,

Q. “Is that the reason why vou did these subse-

° waa things after Ricky Woéds died? -

“Yes.” | P-1, ped 715! ,

’ The foregoing establishes, as earlier stated, that Sco-

leri’s prior criminal record was invoked by him as part of

his ‘deferise” of undisputed conduct which the jtiry could

properly find, as it did, involved him in the commission of

‘the robbery-murder. That being so, under the. principles

stated, Seoleri woarred and or cured the fundamental error .

which the majority holds was committed in the admission{

of evidence of his prior criminal record in the presentatidn,

of the state’s case,

BY ae

Still another instance must be cited of Scoleri’s invok-

ing of his prior criminal record as part of his “defense”.

A state witness, Richard Febo, had testitied that Scoleri.

on the day of the robbery-murder, had shown him two re-

volvers which he said were to be used by him in a hold-up

or armed robbery and had invited him to participate, but

he declined. In an apparent eifort to discredit Febo's tes-

timony Scoleri was asked-by his counsel :

Q. “Who is Richard Febo?

A. “Richard Febo was my accomplice when we

were arrested in 1948 for a series of armed robberies.

YQ. “Doe you know of your own knowledge how

much back time Febo has?

A. “He has 30 years’ back time.” {P-1, p. 729!

Scoleri then testitied that when Febo, with whom he

had served in jail, “first came home from prison he was

unstable emotionally and distraught .. . given to out-

bursts of temper and crying spells’, and he introduced him

to Dr. Vasquez “for some spiritual aid”.

It is of course obvious that again Seoleri premised a

defense maneuver with respect to Febo’s testimony on his

“concern” for this “emotionally and distraught" man, and

that a necessary ingredient of the defense strategy was the

establishment of their past common criminal] association.

It may further be observed that Dr. Vasquez wa-

called by the defense to corroborate: Scoleri’s -stimony that

Febo was 21 unreliable witness. He testific] that Scoleri

brought Febo to see him at one timé and said to him.

“Here is a boy who is very badly mixed up. Let us see if we

ean help him’. In-doing so Dr. Vasquez testified prelimi-

narily that Scoleri “did tine work for me when he came ont

of the pes ife nhiaray, Here again al Scoleri defense witnes-

testified as tu chix prior criminal record thus waiving or

curing the “fundamental errer” condemned by the major

liy.' -(P-], p. 872 :

~ ‘it?

There remains only this to be said. ;

The federal due process clause which was designed to

protect the innocent should not be discredited by its use to

afford “mere technical loopholes for the escape. of the

guilty”. Stein v. New York, 346 U.S. 156, 196-197 11953)

It was there said «p. 197):

“The petitioners have had fair trial and fair re-

view. The people of the State are also entitled to due

process of law.”

In the instant case Scoleri had a “fair trial and fair

review" by the Supreme Court of Pennsylvania. The

people of the State of Pennsylvania “are also entitled to

due process of law”. >

For the reasons stated 1 would affirm the Order of the

District Court denying Scoleri’s petition for the writ of

habeas corpus.

Judge Staley Joins in the foregoing.

Hastir, Circuit Judge, dissenting.

Concurring specially in United States er rel. Thomp-

sone, Price, WS, 258 F.2d 91s, 022, 1 expressed the view

Mop nave not advert ab tcthh tonee that Seoleri’s coun-e

had brought to light his criminal post in eres-s-esxamination of Ida

Wanerar, it state Vittie=s, long fefoge the stat introduced into evidene

the mooted criminal record, because in mov cprmuenm if is unnecess<ar

‘o rely on it in view of the comduet of the dete nse im making

Sealert’s criminal record a vital defen-<e7ti ter thu- waivingcor cut

the <tiate’s error, I ery it tee

It wie Yoss-esmu M etetioe

esac gtead flies ? ert) thar | se ad | t | ny =

er) Mr- |: tract { he mination ever

nent ered | ; rf P ’ ° ere tit ‘ ! ler:

prisam service

The majority has neted-that “Didge Qoandrioct: participated

the consideration of this case but died prior teéthe Shog of thi-

pinion.” Pt shed ie meted that at the nierence following ora

argument of this ippectl Dudge Gaedrich voted! Tirrer thee Qvrrcdes

of the District Court denving the writ of hedheus corpus 1?

‘tion after guilt had bee

that, but for the defendant’s.acquiescence, it would have

been gravely unfair to permit the introduction of his prior

criminal record during the course of his trial and before

the determination of guilt or innocence, since the only legiti-

mate function of that evidence, guidance in the imposition

of sentence, could as well haye been achieved by its introdue-

hives This case presents

the same basic question.

It js true, as JUDGE KALODNER points out in his dissent

here, that there are various situations in which courts have

admitted evidence during a criminal! trial which has beth a

legitimate function and a probable prejudicial effect. But

in those causes, in order to get before the jurors certain in-

formation which they should have, it was necessary to risk

the prejudice which this information might create. What

makes the present case different is the fact that there was.

an easy, simple and obvious Way ¢ of achieving the legiiimate—

effect of the evidence of prior convictions without subjecting

the defendant to its prejudicial effect on the issue of guilt -

or innocence. It seemed to me in the Thompson case and it:

seems to me now that it is unfair for a state to employ a

seriously prejudicial procedure when an obviously satis-

factory non-prejudicial alternative is available.

However, there is one line-of cases, which did not hyve

to be considered in the Thompson appeal because of the Me

féndant’s acquiescence, which must be considered here. Thjs

is the line of Supreme Court decisions sustaining habitull

offender statutes. Under some of these statutes, the pro-

cedure has been to present evidence of prior convictions to

the jury along with the evidence of the alleged new offense.

In otner cases, evidence of prior crime has not been intro-

duced until after conviction. The significant thing is that

the Supreme Court has sanctioned both procedures with no

indication that the prejudice inherent in one amounts to a

constitution} defect. Graham vr. West Virginia, on 224

U.S. 616; McDonald v. Massachusetts, 1901, 180 U.S. 311:

Moore vv. Misssuri, 1895, 159 U.S. 673. More recesstly, in

Chandler «. Fretag, 1954, 348 U.S. 3, the Supreme Courr

~” 8

2 a

as ; Me

considered a conviction under the Tenngssee habitual of-

fender statute which contained ‘the prejudicial feature of

introducing the evidence of prior crimés before a determi-

nation Whether the accused was guilty of the alleged new

offense. The court took note that the determination of prior

convictions and the trial on the new offense “may be con-

ducted in a single proceeding” before the tri:! Jury. 34s

U.S. at 8. While the contested issue on that appeal was an

alleged denial «the right to counsel. the presently sieniti-

eant fact is that the Court ordered a new trial to be con

ducted under the Tennessee procedure of submittine evi-

dence of prior convictions to the jury during the course of

the trial. i :

The prejudice involved in the procedure under <neh

nabitual offender statutes and the obvious availability of a

non-prejudicial alternative are as clear and as serious as

the avoidable prejudice to which Scoleri has been subjected.

So long as the Supreme Court sanctions the one procedure

it seems to me that an inferior court is not Justified in-hold-

ing the other unconstitutional. We are faced with the a!

Ways difficult question whether undesirable state practice

is se bad as wo be intolerable. Tam constrained to fellow the

teaching of the Supreme Court in the habitug! offende:

cases that such an undesirable practice as we have here i-

wlerable although, without that guidance, | would be dis.

posed to reach the opposite conclusion. f

The majority opinion distinguishes the Supreme Cour:

cases upholding-the habitual offender statutes on the ground

that conviction under those statutes merely results in very

long terms of imprisonment, life imprisonment in mans

cases, While Scoleri has been sentenced to death. | do no:

believe that the habitual offender cases turn upon this dis-

tinction between death and Jong term imprisonment. How

ever, it is true that such cases as Betts 7. Brada, 1942. 216

U.S. 455, indicate that the Supreme Court is Jess reluctan:

to condemn state procedure as a denial of due process when

human life is at stake than when imprisonment only is in-

volved. But I can find nothing in the habitual offender

‘ases that in. any way suggests a judicial conclusion that

the procedure in question was disturbingly unfair, but not

_quitetinfair enough to warrant federal interference’ with

the state conviction because the litigation did not involve

a death penalty. Rather, the Court seems to have felt that

the use of prior conviction evidence during the trial of the

issue of guilt or innocence Wis not the sort of extreme un-

fairness Which could in any case amount to denial of due

process of Jaw. Moreover, underlying the Betts v. Brady

line of cases on the right of indigents te counsel is the con-

sideration that the providing of suitable professional repre-

sentation for every indigent person accused of a non-capital

crime does involve practical difficulties and would impose

a great burden upon the bar. No such consideration is in-

volved here. For these reasons. I] am not persuaded by the

undertaking of the majority to distinguish tie habitual of-

fender cases.

Finally, I do not agree with JUDGE KALODNER’S view

that Scoleri “waived” his objection to the introduction of

his criminal record. That argument is based upon refer-

ences made to the defendants’ earlier crimes during the

course of his defense after the elaborate and prejudicial

criminal record had been introduced in evidence, over

strenuous objection, during the course of the government's

case in chiet. T can find neither reason nor justice in a

ruling which would give such detrimental effect to the de-

fendant’s effort to make the best of a bad situation zfter

it had been created over his objection. My dissent is based

solely upon my judgment that the habitual offender cases

control ‘he constitutional issue in this case.

NITED STATES COURT oF APPEALS

For THE THirp Crrecrr

UNITED Srares of AMeiica EX Pes

ANTHONY SCoLPRE.

ad App

WILLIAM J. BANMILUER., Warden. as

Peniten' bar's

On Petition for Rehearing and- on Petision for Lewe

Intervene Amicus Cerin und to hile a Pi raes fue gee

Appearance.

Before Bicas, Chief Judac, and MCLAUGHLIN, KALooNE ER.

STALEY, HAsTiE, GANEY, and SMITH, Clrecit Sides

OPINION OF THE COURT

(Filed December 11, 1962

PER CURIAM.

In view of the petition for rehearing we must rectop..

size the principles inhering in our decision. Tie Commer

wealth introduced into the record in its ease in ehlef. o< we

Aave stated, Scoleri’s twenty-five prior unrelated ceny jet ions

of, or pleas of guilty to, charges of robbery with violence

The admission of this evidence was duly objected to on con

men

Gan,

P .

s nee Ho) ;

‘ +

atitutional grounds. The sue of ScWeri's guilt as well as

the penalty to be imposed on him were both before the jury

for determination. Scoleri’s defense was an alibi and he

attempted t6 prove that witnesses who testified that he wa-

at the scene of the crime. ..d made a mistake-in identifica-

tion In short, the issue of identification was vital. On éhi-

state of facts’We Held that the introdaction-inte evidence of

the twenty-five prior unrelated convictions of, or pleas of

guilty to, charges of robbery with violence were'so prejudi-

jaleso unfair, as to constitute.a denial of due process of law

to Sevleri. |

We have stated the foregoing to make it clear that

every case Which involves the delicate balance of cdmit)

between the courts of 4 state 4nd tose Of the federal system

mus! be considered und decided on its own precise facts. In

the case at bar we did not lay down a’ rule of evidence for

the Pennsylvania, State tribunals. We handed down a judg-

ment as to the fundamental fairness or unfairness of what

was done in this particular case. +.

As to the contention that this court. was evenly divjded:

in opinion.and that therefore the decigion of the court below

must stand, we will state the following. An expression Of a

point of view by a member of this court at conference is

tentative. The vote of a member of this court on the disposi-

tion of an: appeal occurs after the proposed opinion of the :

court is Cireulated and does not become effective until the

opinion of. the court is figd. Judge Goodrich died before the

circulation of the opinion in this case and therefore did not

. vote.

In the light of all the circumstances we can percojve no

valid reason for permitting the President of the District

Attorneys Association of Pennsylvania to intervene amicus

curiae and to file a praecipe for appearance even though we,

assume, without deciding, that the Associutign’s Presiden:

possesses /ocus standii in the instant proceeding.

The petitions will be denied.

“4

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‘ 6

KALODNER. Circuit Svdge, concurring °

«@eo* - a .

I have jqined in tne denial of the petition for renearing

since al] the points raised-in it with the exception of that

which relates to the “failure to count the vote” of our de

ceased brot her, Goodrich, nave already been considered by

the Court en bune. >

1 must add that ] dtem the point raised with respect

“to the failure t@ count the vote of- J thize Goodrich” to be

without merit. e . ‘

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IN THE UNITED STaTES DISTRICT COURT

FOR THE BASTERN DISTRICT OF PENNSYLVANIA

Mise. No. 2222

e UNITED STATES OF AMERICA, oe

EX REL. ANTHONY SCOLERI

. r 3s

WILLIAM J. BAN MILLER, Warden

astern State Penitentiary, Philadelphia, Pennsy!vania

. ar 6 ; : .

OPINION. >

GRIM, //. ; | Oetober 4, 1961

- ‘

. a , .

- Relator, corfined in a Pennsylvania prison under,

sambense of. death for first-degree mierder, has petitioned

for a writ of habeas corpus. He appeaied his conviction to

the Supreme Court of, Pennsylvania, which affirmed the

judgnient, 399 Pa. 110 (1960). The Supreme Court of, the

United States denied certiorari,. 364 U.S. 849 11960,

Respondent has filed an answer to the petition for habeas

corpus, and extensive testimony has been taken. :

The myrder® trial began at Philadelphia Monday, No-

vember 17, J958, and lasted nine days. Relator’s defense

was an alibi. Ont the sixth day, Saturday, relator’s brother

testified for the defense. Later that day‘ relator testified

in his own defense. The brother's testimony conflicted

with relator’s in such a way as to weaken yelator’ s defense

considerably and made it appear that- relator would be

convicted. +

On.the morning of the seventh day of the tral, Mon-

day, November 24, a guard at Holmesburg Prison, Phita-

delphia, found relator, “lying on cell Bed. with left™arm

cut ina few places, cell in some disorder & Blood &fitrered

: Bw Mee

raid

on floors & walls.” The guftd summoned a prison doctor i:

about 6:35 am. The doctor arrived onthe scene at abou’

7 Gm, m., and examined relator both in his cet) and in the

tui al block of the prison, to, which he was carried on

stretcher. - “. : ‘

Ox examination, the doctor found 24 shaliow cuts.

ber ween thie, Jwrist and the elbow, in relator’= left arm

bniv one “eul, near the elbow, went through the skin And

when the ‘doctor examined him, blood was flowing Wer

slowly “the doctor calied it “welling from oni: this tut

At the time of the examination rgdator Was conscious, hi:

pulse rate Was 74. his biood pressure was norma! (the

reading being 130 82). his color was good? his breathing

Was good, und his general physica) condition, save for the

cute-was good. He appeared strong eneugh to run. His eve

were squeezed tight shut. his head was: rolling back

forth: and he did not speak.’ While the doctor was treating

him. cleaning, sterilizing, and suturing the cuts. relator

tried to fight the insertion of thes sutures. He did not re

spond when the doctor asked thet he twist his hands .o

move shis fingers, a test of possible damage to the tendo

»At the «loctor’s direction rejator was given GOK faL °

units ‘an average dose) of penicillin to preven: infection

from the cuts, and 140 milligrams of thorazine Schior.

~ promazine),a trancuilizer, to quiet him. -

Directly after this treatment relator was placed ine

Whee! chair and taken to the prison vard. where he wa:

‘arried and placed On dt stretcher inv prison van for trans-

portation to the trial, In the van he apnenred wih tie Tist-

less, motionless, lifeless, and Inv-stupor. On ; yng he che

place of trial, City Ball in P hiladeiphiz, Milator wwas caryies

out ‘of the van on a stretcher to an elev “ator where the

guards placed him on w chair to get him on the elevator. On

leaving the elevator he was again placed on a stretcher an:

carried on it to an anteroom to phe court roon,

In the anteroom he was examined by Dy Bove. :

physician in the Police Surgeon's office, at about Oo80 a.m

At that time relator was sitting in a ehair He nped rer

¢ 4 .

ec’

“7?

64 ° 3 at

sumewhat somnolent and his pupils were. contracted, but

“he revived easily when the doctor applied aromatic spirits

of ammonia to his nostrils, although he resisted this at-

tempt to revive him. His pulse was full and regular, about

78. The doctor took out a pack of cigarettes and said,

“Tony, have a cigarette.” Relator reached over, took

cigayette from*the pack, and put it in his mouth. He re-

tained his position in the chair. During the examination

relator answered when the doctor spoke to, him. In the

doctor’s opinion relator was then alert enough to know

what was going on, 95‘) of? full alertness, and was com-

petent to stand trialy :

As Dr. “Bove Was leaving at about 10:00 .m., “nother

police surgeon, Dr, Carideo, entered and examined elafor.

When Dr. Carideo made his examination, relator v..s lying

on a stretcher, his eves were closed. He said nothing, his

blood pressure was slightly lo his pulse was rapid, there

was no pallor, and there was no sign of respiratory depres-

sion. His muscle tone was good. When the doctor held a

phial of aromatic spirits of ammonia to his nose he quickly

and foregfully turned his head from side to side, and wheh

. the doctor’ persisted, relator took a deep breath and held

it until the doctor removed -the ammonia.. There was an

element of resistiveness when the doctor manipulated his

arms. He did not respond fo the doctor's questions. The

doctor felt that he was under the influence of some sation.

and for this reason recommended to the t trial judge that he:

should not be put'on trial, but should beTllowed a sufficient

time in which whatever he might have been given would

dissipate. He examined relator several times during the

day and at 7:30 p.m. observed that relator’s pupils were no

longer contracted, that his pulse rate was betier, that his

blood pressure was normal for his age and body build, and

that his respiration was still not embarrassed, On the basis

of the doctor's opinion‘that relator was then fit to stand

trial, the.tria] resumed at 7:30 p.m.

When the trial nie relator lay motionless on a

stretcher. Dr. Carideo remained continuously in attendance

-'D

-on him that evening, and there was no change in his con

dition. At one point during the evening relator said le was

cold and pulied a blanket up close io his neck. He also asked

for water, wa ; a

At 10:20 p.m. on the severith day of ihe trial, after the

defense had completed its evidence and before the prosécu-

tion presented its febuttal evidence, defense counsel ob-

jected to the produetiyn of any rebuttal on the ground that -

relator’s condition at that time,Was such that defense coun-

sel were unable to consult with himeor talk to him about the

evidence about to be offered. The response of the court was:

“T have heen advised before we brought him in

that he was able‘to consult. T have heen advised by t]

«doctors. A doctor is here in attendance, and he’ has

stated that since that time he is better able than, he

Was five hours ‘Ago, which antedazed the time we

started this session by two hours, and you notice this,

he has asked for water, and he has as ced fora blanket,

. and inasmuch as some of the testimony has been taken

Within his presence and within hjs hearing, I de not

propose to have this case interruped any longer.

% “Your objection is overruled.”

The t vial proceeded. :

When the trial reces#d that night relator was returned

to the prison at about 11:45 p.m. He walked into the van

at City Hall that night. When he arrived at the prison he

walked out of the van and up five or six steps into the prison

hospital. | |

Relator now seeks habeas corpus, contending that his

conviction was, void (1+ beéause evidence of. his crimina!

recdtd was placed before the jury, (2) because relator was

» not present when the trial judge heard evidence of his abil-

ity to stand trial, and (3) because during part of the trial!

he*was unable, because of his physical condition as previ-

ously described, to-receive the effective assi stance of counsel,

. \ fe a §

—_—

*%.

Criminal Reeard .

The Court of Appeals for the Third Circuit held in

“United_States v. Price, 258 F.2d 918, 923 11958), that the

Pennsylvania procedure of admitting evidence of the de-

fendant’s criminal record, prior to any verdict, in érder to

guide the jury in fixing the punishment in-the event of a’

verdict of guilty of first-degree murder, “does not pass the

bounds laid dewn for: state procedure by -the due process

clause,” B58 F.2d at p. 922. While the Court of. Appeals

was divided on this case, the decision stands and is binding

on this district court. Ib would not become this court to

accept counsel's invitavian to speculate on the possible effect

of changes in the membership of the Court of Appeals

The Pennsylvania statute allowing the jury to de-

@rmine the penalty in cases of murder in the first degrees

was amended following Scoleri’s conviction but_before tinal

argument on his appeal ie the Pennsylvania Supreme Court,

by the Act of December 1/1959, P. L. 1621, 1s Ps. 54701.

The amendment provides for a “split verdict” in such ca ibs.

The jury is first to determine the defendant’s guilt or in-

nocence, agd then, in the event of“a verdict of guilty of

murder in the first degree, the jury is to “receive such ad-

ditional evidence not previously receiv ed in the®rial as may

be relevant and admissible upon the question of the penalty

to be imposed upon the defendant. . . / The jury shall then .

retire and consider the penalty to he ‘imposed and render

‘such verdict respecting itvas they shall agree on.” In re-

lator’s appeal the I ‘ennsylvamia Supreme Court held that the

amendment was not retroactive and not applicable to his

case. The amendment in né wise affects the binding author-

itv of United States v. Price, supra, in whieh the court albeit

with some reluctance, held the prior procedure not violative

of due process. «

s , °

Abhsc eae Wis vf Trial Judge He ard Bividevive aot

> . . oF hd . “yr ° ?

Ability To Shand Trial

The trial! judge: he ard the medical reports coneerning

relator’s condition in the presenge of counsel for the prose

cution and the defense. The jury was not present? nor Was

the relator. : . _ °

At the opening of court on the morning the trial qdye

charged the Jury, the following occurred :

“THE COURT: Dees the defe nse Want~i physic al

e Xamini ition of the defend:int this mort ing”

“MR. McCLAIN: No, sir.

“THE COURT: [have now dismissed the Com

monwealth’s physician. 7

“Before we start, | want you to know that under

professional medical advice this defendant's trial con-

in this courtroom. The professional medical advice w: us

that he was competent to hear everything intetligen: ly.

his pulse Was normal, there’was no high blood pressure,

_ no distress, and there was no medical reason for this

particular condition, an off ious condition, and the phy-

sicians say there was nothing w rong with him whatso-

ever. Had it been that he was incapable of hearing

what Was going on here, we could not, have proceeded.

We would have just had to continue the case. We « con-

tinued it for one day, as you know.” : .

Immediately thereafter the court charged the jury

There are numerous general statements to the effect

that a defendant is entitled to be present at bvery stage of

criminal proceedings against him. The problem ca ENN

car. 19 > Wy affirmed on other crounds, Johnsov Y. Unite “f

. “5 —_

! gue the Johnson case? involved due process in the. federa

courts, rather then in the state ea ints as in the case at bar, the’s

ssue Was due process of [ave and as was <aidgin the Johmson couse

~ . e cs

i - 68

States, 318 U.S. 189 (1943). In that case, a prosecution for

violation of the Internal Revenue Laws, the trial court ex-

cluded the® *defendarft from the court room during argument

on the admissibility df evidence. The Court of Appeals held

that this did not deny the defendant his rignt to due process.

“The question which we have before us in the in-

stant case is one which’ is extremely difficult to answer.

* Obv jously it is not necessary for agleféhdant to be pres-

ent at every stage of the proceedings against him. Due

‘process does not require him to be in court when a true

bill is returned against him by a grand jury or when

his appeal is argued in the appellate court |¢ ‘itations |.

The defendant must be in court’when jurors aie chal-.

lenged | citations]. Certainly the defendant must be

present when the jury is inthe box and the trial is in

progress. The defendant must be deemed to have the

absolute right,to hear everything which.the jury’ ‘hears

if he is to protect himself. Uniler such circumstarice<

his presence bears a relation“reasonably substantial, to

his opportunity to defend.’ To exclude him from the

court room upon such occasions would be to hazard his

constitutional! rights upon the theory an appellate tri-

bunal might save him from jeopardy. He must be pres-

ent when the jury-is preseng and is receiving evidence.

If he is, then the trial meets the substance of the strin-

gent test laid down by Mr. Justice Roberts in his dis:

senting opinion inétRe Snyder case, 291 U.S. at page

129... Mr. Justice Roberts stated that the prisoner's

constitutional pight of presence “. . . comprehend/|s!

the inquiry by the ordained trier of fact from beginning -

to end’. . . In the instant case it appears that the de-

fendant was present at al] times that the jury was pres-

ent and his absolute constituitonal right of presence

was not infringed.” 129 F.2d 958, 959.

. the phrase ‘due process of law’ used in the Fourteenth Amepnd-

ment.te restrain action by the states means substantially the same

as that phrase of the Fifth Amendment, restraining action by the

federal government.”

; : -

» s

% 69 ova

a mae >. : :

z rhe only issue at the trial was whether, as a cense-

quence of certain happenings some months previously, re-

later was guilty of murder, and if so in JWhat, degree

> Whether or not defendant was phy sically and mentally com

petent during part of thé qrial was, of course, a vital matter,

but it Was now gan issue for the determination of the fairy, any

more tharyweu! d have been the passib! e incompetence’ of

court or counsel at the trial. The court's comment immedi-

ately preceding the charge (quoted above: might well have

been omitted, but the comment did not violate any Wf “de-

fendant’s rights toalue process. -

Since tht issue of relator’s com pecerce hid novan issue

for the jury, it did not constitute part of the trial, and i:

Was not violative of due process for the court to hear the’

dectogys report ts if relator’s absence.

One important factor ‘in addition js that deferdant’:

counsel made no objection although they were present when

. the trial judge received the medical reports and had every

opportunity to object to their receipt in -the absence of

- defendant. eter j

Tnability to Receive

\ Eithective Assistance of Counsel ,

: :

n a if 4 e .

telator presented the testimony of himself, some of

his relatives, a friend, and a fellow prisoner, which, if be-

lieved, would establish that- during the trial he received

surreptitiously and used a quantity’ of drugs, that he se-

‘vreted them in his rectum and so.was able to bring them

“into the prison undetected, that being in despair following

the testimony of himself and his brother he attempted to

commit suicide-late Sunday night or early Monday morn-

>» img by cutting his wrist and simultaneously takine the,

balance of the large quantity of drugs, that these druc-

included secona!, nembutal, placidyl, and’ possibly butisc*

sodium, that the suicide attemf® failed although he in-

tended that it succeed, and that the effect of the drugs he

took > attempt. coupled with the thorazine given him

- 70

later, had thg effect of dulling his senses of awareness of

his surroundings so that ther could not be reasonable

“communication between him and his counsel, with the end

result that during the seventh-and perhaps the — re :

of the trial he was unable to cooperate fully with, or to

receive the effective assistance of, his counsel.

It is incredible* that he could take this quantity of

powerful drugs and live, I accept as credibie the testimony

of Dr. Keyes that the taking of all these drugs would:

‘probably have caused death, o1 at the least a profound

coma for a protracted period. I do not believe that relator,

his relatives, his friend, and his fellow prisoner told the

‘truth about the drugs. Lam impressed by relator’s failure

to produce his defense counsel to testify in this proceeding

on the vital issue of his ability. to communicate with them.

to communicate at his trial was not real but was an inten-

tional and deliberate effort on his part to convey a false

impression. I find that he was conscious and able to com-

-municate with his counsel during his entire trial.

The facts and law set forth in this proceeding consti-

tute the court aaerer of fact and conclusi ns of law.

AND Now, areal , 1961, the petition for writ of

habeas corpus is denied.. . ,

s ALLAN-K. GRIM, //.

- I find that relator’s ‘apparent ‘unconsciousness or inability ,

“4

’

ty .

UNITED STATES COURT OF APPEALS “

FOR THE THIRD CIRCUIT

No. 13.024

UNITED STATES OF AMERICA

EX REL. HERMAN RUCKER,

rd ; é f

. 4 App Man

sen M. Myers, Warden, State Correctional!

Institution, Graterford, Pennsylvania.

*o y $

Appeal from: the United States District: Court) for the

Eastern District of PennSyvivania 4

Argued October 18, 1962

Before: MCLAUGHLIN and Hastiz, @irewt Judges; and

DUMBAULD, District Judge. .

ting e

om - : a ye

j , OPIN TON OF THE “COU 1

- Filed November 30, 1962)

~ ‘ 2

By HASTIE, Circuit Fudge.

This is an appeal by a Pennsylvania state prisoner.

who is under sentence of death for first degree murder

from a United States District-Court’s denial of his peti-

tion for a writ of habeas corpus on a claim that the pro-

cedure ats trial deprived him of dué process of law. The

highest state court had ‘réjected this Gaim. Common. °

wealth vw. Ruecer, 1961, 403 Pa, 262. 168 A2d TBe. cert

~ denied, 368 U.S. S68.

».

72 | | P

e e 2?

During appellant’s trial and before his conviction, the

Jury was informed, over his objection, that he had previ-

ously been convicted of voluntary manslaughter and ag-—

gravated assault. The jury was instructed that it should

consider these convictions only for the purpose of deter-

mining the penalty for first degree murder if and after

the accused should be found guilty of that crime. Appel-

lant captends’ that this introduction of his jrior criminal—-~

record in evidence guring the presentation of the prosecu-

tion’s case in chief ' was so lacking in justification and so

prejudicial that it constituted a deniai of due process of

law. On October Lo, 1962, in Unite d States e« rel, Scoleri

. Banmiier, No. 13,834, — F.2d-—, this court, sitting er

a sustained a similar contention. Therefore. our first

inquiry is whether this case differs in any significant way

from Scoleri. | This ease now reporte® at 311 F.2d 311}

The Scoleri case grew out of a homicide during the

course of an armed robbery. The defense attempted to

establish an alibi and to prove that the witnesses who

placed the accused at the scene of the crime had mistaken

another person of rather simijar appearance for him, But

When the jury retired to consider this evidence, there Was 9

also before it Scoleri’s eriminal record of twenty-five prior

robbery convictions, which had been included in the govern-

ment’s case in chief. Although the jury had been in-

structed to consider this record only in detefmining the

penalty for first degree murder and not on the question of

guilt or innocenée, this court concluded that such proof of

a large number of previous robberies by the accused was

“gravely prejudicial” on the controverted question of his’ ’

participation in the instant‘ rohbery. Aad since this prej-

' This procedure, first sagactioned in Cowmmeuwealth ve. Parker,

"1928, 292 Pin. 114,143 Atl. 904, was followed until the “Split-Verdict

vet” of December’ 1, 1959, PLL. 1621, $1, 18 P.S, Si701 CRupp..

Under that statute such evidence is intreduced only in a supple-

mentifry proceeding after conviction to determine the penalty for

fir-t degree murde r. Howe ver, the new law had not bec: me eifective

at the time of appellant's trial. ,

Lad

cal

udice could have been’ avoided and the limited proper pur

pose of the evidence could as, Well have beef¥-complished

by merely withholding the evidence of prior crimes. until

after guilt had been détermined. a Majority of this eourt

held that due process of law had been denied. It was the

essence of our holding that, in the circumstances of the

Scoleri ‘case, the introduction of evidence of prior «crimes

needlessly subjected the accused to “grave prejudice’, «

, With this rationdle of Scolert ine mind, we next con-

sider the issues, and the evidence in the present case. This

too Was an indictment for murder alleged to have occurred

during the commission of avobbery. The proseeution also

deliberate.

‘The victim was the Wife of the proprietor of a smal]

corner grocery store in Philadelphia. There was undis-~

puted evidence thaLon December 13, 1958, the couple closed

the store at 6:34%p.m. and retired to their adjoining living

quarters. About 9 p.m. two men burst in upon them,

savagely beat both of them, stabbed and killed the wife,

took more than one hundred dollars from a drawer and

from the cash. register, and escaped. Within two hours a

search of the immediate neighborhood resulted in the

apprehension and arrest of the appellant.and another man.

Their clothing Was stained with What was later identified

as human blood of the same type as that of the deceased.

and they had in their possession money and papers, which

were later identified as proceeds of the robbery. :

Appellant made-a full confession within 2 few hours

after his arrest and shortly thereafter he reenacted the

crime at its scene. A court stenographer recorded - the

confession verbatim, and it was introduced into evidence at’

the trial. In his confession, he admitted breaking into the

house for the purpose of robbery, beating and stabbing the

deceased, accomplishing the robbery,“and fleeing from-the |”

premises. The defense did not contend that the confession

Was coerced or that it was incorrect in any detail, *

‘ i ' e

. undertook to show ‘that the killing was willful and

‘

> | ._At appellant's trial the only defenge attempted was a

show ‘ing and-argument, in mitigation that accused was ‘a

heavy drinker, that he was quarrelsgme and bellitose when -

drinking, and that he had consumed considerable amounts

of wine and whiskey. shortly before setting out on his felo-_

nious enterprise. However, voluntary drunkeness was no

defense at ‘all in the circumstances gf this case. On the

clear and undispyted evidence, including appellant’s ex-

“ * The fo owing ‘aan summary of- the facts, us established

vithout comnts ‘adiction in the trial record appears in the opinion of

the Supreme Court of .Pennsyivenia on the present appellant’ < direct

appeal from his cénviction : ; : d

-On December 18, 1958, at approximately 9% p.m., detand-

ant wit) one Carl Melton forced open the cellars door and .

HS entered the grocery store and dwelling Sf Samuel Schloss and

Roce Schloss, his'wife, which was located at 3f1 North Franklin

Street. a i hiladelphia. Their principal objective Wis to rob the

hlosses.e who were each 65 vears of ‘age. Melton grabbed

Se coe and brutMily «ind mercilessly beat kite om his head with

aw hat@het and various large pieces ‘of. briéss pipe,-the bloog

Wits sults r&toon thetloor, the walls and even the ceihing. De-

fendant went into another room, knocked Mrs. Schloss to the

ground st: cmped® sever: al times on her face with his: her], beat

her into unéénsciousness and then stabbed: her in stve ral part-

of her’body with a long boning knife, which he left -in her

body. She died from the knife wound. W ithout further detail

it will suffice to say that it was,ene of the most brutal, | vicious,

merciless, unnecessary—and- inhuman killings eer committed,

ft was not only committed in the perpetratioa ofea robbery,

but it was aleo a willful, deliberate and premeditatet) murder

They then ritled the cash regei- ter and fled’ s a

“An bent Tater that night d@fendante and Melton were

arrestvd on the street a short distance. from the Schloss home

There were blood’ stains on the arms and yr ny “4 both men

and they were caught with the ‘fruit® of th crime’ Crobbery:

Defendant not only signed a volantery deta led contession but

also re-enacted the killing for the police. Defendant did nat

testify im bis own defense. After a very able charge by thg

Court’ the jarv convicted defendant of first: degree murder

with penalty of death.” Commonwealty or, Rucher, 1961, 403

Pa. 262, 168 A. 2d 73200 ‘

“eo

cy)

=p i v

i) 7

commission of a felony. In accordance with Pennsylvania

lawthe trial jMige cha rged as follows: .

: “Now, if you find that the defendant killed Rose

Schloss in the perpetration of, or attémpt to perpe-

trate, the felony-of burglary or robbery, then the

yee affirmative defense of intoxiation would not be mean-

ineful at all, because the specific intent to kill is pot

required under our statute to raise 4 e crime to first:

‘degree murder under such circumstances.” oe.

Consistent with this charge. the jury could not properly

have used the evidence of: intoNication as a basis for gmd-

ing the accused guilty of an offense less serious than inst?

“ degree murder. Moreover. since appellant’s drunkenhess

Was voluntary, and his Getailed ctmfession and reconstruc-

tn. of the crime demonstrated his awareness of what he

was doing, the jury could not reasonaldy have’ avoided the

conclusion that the accused was responsible for his eonduct.

¢ More generally. the evidence was clear, overwhelming:

and uncontroverted on every point essential to the proof of

first degree murder. There was neither a significant con-

flict in the evidence nor a ‘danbfful issue of fact in connec-

tion with which the jury's awareness of the defendant's

prior conviction of vgluntary manslaughter and avera-

vated assault could have been prejudictel, Indeed, a read-

‘ing of tht record makes it-very Clear that the only red!

question was whether death or a lesser penalty should he

~ imposed ag punishment for the felony-murder to which the

accused“had confessed. That, of course. is the very purpose

for which the*jurv could properly consider the evidence of

prior erime.

_ We recognize that there are some situations in whieh,

the procedure in a criminal investigation Or prosecution

has been so shockiny and-ontrageous that a conviction wil!

he vacated even though actual prejudice to the accused ha-

not ben proved. The use of toyture or the imposition of?

¢ i - . aie . anes

plicit admission, this was a homicide committed during the -

” sf

‘o

2 i 6 » eo a

gross indignity during the investigation of crime is su

an intolerable procedure. Brown v. Mississippi, 1936, 29%

U.S. 278: Rochim v. California, 1952, 342 U.S. 165.- So

is the willful employment of perjured testimony or the de-

libetate suppression of evideng favorable to the accused.

Pyle ". Kansas, 1942, 317 U.S. 213. In such cases the rep-

rehensible character of the behavior of the representative;

of the state is decisive without regard to any. question of

its effect upon the outcome of a trial. | ;

But we are not dealing here with official conduct which

is grossly wrong, ‘regardless of any prejudicial effect upon

‘the trial of the accused. Courts, including our own, re-

peatedly sanction the admission of evidence for one purpose

with a cautionary instruction that it may not be used for

any other. E.g., United States +. Laurelli, 3d C ir, 1961, 293

F.2d 830, cert. denied, 1962, 368 U.S. 961. Unifed States +

Stirone, 3d Cir. 1958, 262 F. 2d D7T1, rev'd on other avousde,

1960, 361 U.S. 212. In this very case, if the accused nate

testified ini his own defense, evidence of prior crimes woul

have been admissible with an instruction that it be con-

‘sidered for the limited purpose of attacking his gredibility,

Commonwealth v. oe 1928, 295 Pa. 264, 145 Atl. &9.

Courts frequently deplore such procedure. Judge Learned

Hand has described it as “the recommendation to the jury

‘of a mental’ gymnastic which is' beyond, not only their

powers, but anybody's else.” See Nush v. United Statis,

2d Cir. 1932, 54 F.2d 1006, 1007, cert. denied 2285 U.S. 550.

But, the procedure is interdicted “oniy in the cleares} cases

of gross and easily avoided prejudice’: to some party. See™

Torrance v, Sa'zinger, 3d Cir. 1962 297 F. “2d 902, 905

Vaare _s* —* e

* cert. denied, 369 U.S. 887. Accord United States + Pies

gelo, 3d Cir. 1960, 281 F.2d 574. Difference of judgment

as to the iikelihood of suA& prejudice seems to have caused

the divisjon of the Supreme Court in Deli Paoli v. Unite d

States, 1957, 352 U.S. 232. -

We have already demonstrated that the present rec-

ord, unlike the Scoleri reeord, provides no basis’ for appre-

. hension that Phe j jury determination of guilt may have been

unfairly influenced by the evidence of prior crimes, There-

fore, we conclude that no such denial of due’ process of law

as Was found in Seoleri has been established here.

The Judgment Wil! be affirmed: ‘

. MCLAUGHLIN, Circuit Judge dissenting.

Once the true, undisputed factual situation ‘here is

squarely faced, the tssu@is simple,

There was no defense evidence that the defendant had

not committed the homicide. Nothing to cause the jury to

doubt this. No pretension that the defendant was some-

where else when the @rime was perpetrated or that some

other person of “rather similar itppearance™ to him Was

responsible, As the majority opinion stares: ‘At ape! -

Jant’s trial the only defense attempted Was a showing

and argument in mitigation“that accused was a heavy

drinker, that he was quarre!some and Bellicose when dyink-

ing, and that he had consumed cons siderable amounts of

wine and whiskey shortly before setting out on his felonious

enterprise.” | | :

* That defense was not directed at acquittal of the

charge of tirst degree murder. Under the Pennsylvania Jaw

drunkenness is no defense to a felony kijling. So what wes

8 eouvht vas not an unlawful reduction of the crime of

‘felony murder to some lesser offense (which-could not have

heen aecongpshed 1 under the charge: but for the Jury to

exercise its prerogative, under the evidence and in accord-

ance with the charge, to make the sente negate IMprison-

ment instead of death.

The trial court did charge if this was a Tel ony homicide

“then the oad i defense of intoxication world nar bie:

meaningful at all, becarse. the specific intent to kil] is nity

required under our statute to raise the crime to first de ee

murder under such cireumstances.” That went djrect V to

the conviction of first degree murder. As to the penalty

the judge properly teld the jury:

ool a

é.7

oe ~.*

. | 78 / )

“If the defendant fails to prove the defense-of

imoxication to the satisfaction of the jury, this defense

is not valueless. It does not deprive- him of the benefit

of; whatever. evidence is in the case on that subject

Ww hen considered in-connection with any other’ evidence

in fhe case w hich might guide you as to the proper

penalty in the event that xu find the defendant guilty

of murder in the first degree. Again I gemind you,

members of the jury, that my recollection of the evi-

dence is that there is very little, if any, evidence of

intoxication. However, you are the fact finding body

and it is your recollection, and your recollection alone.

* which governs and centrols.”

That “affirmative deletee of intoxication” was there-

fore before the jury on‘the one controverted issue of the

trial, the question of whether the jury would sentence the

‘defendant to die or to imprisonment for life. There’ was

nothing collateral about that problem. And nothing col-

fAteral about the defense effort to satisfy the, jury tha:

Rucker‘ was a heavy drinker through the vears and was

drunk at ihe time of the crime. The enly fair inference

from the testivaony of his unfortunate. sister was that

Rucker, since his return from three or four years of combat

service under General Patton, was a nervous, guarrelsome

alcoholic who even fought with her and his brothers when

he was drunk and because he was drunk. Quite a point is

gure, = the majority with reference to Rucket’s “volun-

tary drunkenness”. It is, not needed now but at any new

trial it should de thoreughly established that an alcoholic’s

drunkenness is not, generally speaking, veluntary but com-

pulsive. Entirely aside from that, the trial jury had before

it the miserable and pitiful deterioration of Rucker since

the’last war and the contention that he was intoxieated a

the time cf the slaying. Argued stronfiy to the@jury, as. |

this life or death proposition should have been and un-

doubtedly cat, . one can reasonably say that the jury's

verdict of guilty of first degree murder would not have

we)

“

——_

Foal

tixed the penalty at life imprisongent. And no one, once the <

significance of the above simple facts is understood; can

reasonably say that putting before the jury when it was

making its most serious choice, the prisoner's past at ae.

record, dit not substantially prejudice Rucker on the sine|s-

real question before it. Until then, Rucker. Justitiably, had

an excellent chence of life imprisonment. That chance wa-

destroyed by jhe jury being told chat he had previously been

indicted for murder, under whieh he had pleaded guilty te :

volntary mansiaughter and that he had alse been tried ane

fornd guilty of urving to kill somebody se. °

It is heartening to note that the majority opinion does

not pretend that the introduction of Rucker’s past crime-

dig no. weigh heavily agains: him when the Jury considered

What hidsentence should be. As Chief Justice Jones said in ®

nis disseny in Commonwealth v DePoti, 262 Pa. 2e0. 2s)

MP9 Phe thing could, and no doubt has. seca!

Worked out in practice ina truly shocking way.

Basically tQis appeal is not concerned with the convic

‘ion for first degree murder, The drunkaginess did not vitinte :

the degree of the particular erime. MR beavily atfect the

punisament for that crime. lenoring ida the majorite

~ does, Will not resolve the injustice sofa Way the dea’

penalty was’ assured. ‘Me difference berween diving ane

dying even for a Rucker, canno: be propery, designated a

“immaterial”. Rucker was grievously harmed bo chase outs

dence. '

The exercise, attempted in the Majority opinion. an?

comparimentalizing Seoleri does not come off <peees<fy) Vans

vecause we are dealing with the penalty braneh of tile vee bl

dict. rqgt the conviction itself as in Scoleri, The Mutiority’s in -

erpretacon of the principle ef the Seoler) decison

SETIOUS predice toa defendan: resulting from che pres .

‘ation to the jury of. his eriminal

Jur’ t

versal. That construction is Gpen to seriou doubt. Inde:

record mus: result in ore

itis nor easy to accept the complacent asstimerion that co.

admission of his prior crimes record could be nor fee td

80 *®

to a defendant under any circumstances. However, that im-

pressive argument also need not be followed throught this

stage of thes® proceedings since the prejudice to Rucker as _

to’the sentence imposed was overwhelming. Let no one be

confused Ay the endeavor to appraise the amount of preju-

dice to him with respect to the killing of the victim. There

was no defense to that. The glaring w rang before us in this

appeal affected the penalty; if tepheld'it sends Rucker to the

elec ctri¢ caair, Scoleri had a defense on the merits which was

damaged by his record being given the jury. We do not touch

the problem of how baglly the revelation of Rucker’s previ-

vus convictions hurt Mim with the jury as to the offense

itself, That is not gur current controversy. We are concerned

exvlusively with Rae inflicted. The majority opinion

does not even cangentially come to grips with that one part

gf the fury verdict which iggflagrantly wrong and which calls

for a reversal of the judgement of conviction,

APPENDIX "Cc"

DEC ISION DF THE COURT OF APPEALS

“The judgment of the Court below will be reversed with

direction to grant the writ of habeas corpus.” «Appendix B.

sy, bd. e ; ; c

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.