# Petition for a Writ of Certiorari — Fisher v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1012%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 374 U.S. 828 ## Text ss 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 s 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, ‘ 2 i] #. 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 i uw 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. -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 oS o8 r \ e ~ 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 “; 3 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 ‘ a © -» , & » 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). : ot ” oO « 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 © ; ° e i. } _& ’ 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 x : 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 - ~ ‘ & 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-., . . 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- ‘ ’ oe * 4 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 b 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.” ns _ 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 . : 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- 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 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", » ne . 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 m 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 al ‘ : Pes ey i * , { . i ee = ao o> * 2 — a 2 . rn eaten —+ o : - ‘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 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, of 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 s ° 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: » eg % 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 37 . : : - , 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 ** e a 4 if. the conflict ix obvi- ous and glaring . The judgment of rie court below will ‘be reversed with =ne direction Commonwealth wv. Gibbs 167 Pa Sure. TW Sed Tb Ad 759, 752-75 1950 ° ‘ . ms i> = » 40 _” — 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. . ' Hoag vo New Jersey, 356 ULS. 164, 168 ©1958 fe) 41 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. 2 “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 . a 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. ‘ 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 5? — 44 « 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 s tH 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 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 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 — F 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 4% ‘ 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 e the Yi 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 ! i deprived prosecutions for adultery evidence of prior adit stile ‘ Pd ah A _@ the venera: rue which exc ude- vide! iN) ten? to rayne or ru 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 cr the es “er? , det al- so aS, t. s establish: TerOseciu- rin (i ies it remgins a rule of evidence not. a constitutional right.” @¢xXait ee ~ tro ; ‘ . . . Of a cohstitutior eT , pe sae ey ident ? ld 7" s 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. la ifn. uu here Supreme Coir had sustained convict as 4, 46 oe? {7 2. #¢ 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 . 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 : ; a] tucker v. Myers. 200 Fo Sump. 557 1001 | The proceedine® im the x District? Court were filed 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, / / / ae 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? 5 ot a v9 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 t ‘ ee ae | ° . : H] : ‘ 6 KALODNER. Circuit Svdge, concurring ° «@eo* - a . s 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 . ‘ ° é "s : > 9 . a“ > ° . . s ’ o aie “ «. «’ a ° = e 7 , - & v oF. on ° ’ be . . oe 6 . e , \ e Pa e ; > or . - _ . n ‘ ad . i ; ‘ 4 c . . i . ’ oe ‘ ° ¢ * * ; | . : . 2 z . _/. a? ‘ F 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 e ~ 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 Jn og » "9 es 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: t. 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 . 2 ec’ “7? 64 ° 3 at a 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 yo -'D m 5 -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.” 8 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 § —_— *%. Af e . Ob 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 , ° 2 O7 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- © tinued, notwithstanding what vou have witnessed here 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 close serutiny in Un/ted States ©, Johuson, 129 F 2d G54 13d 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 . : : 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 > s o \ - 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. 2 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 , v “4 ’ ty . fe - i] 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 8 a By HASTIE, Circuit Fudge. e 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 gS t, 73 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- o “ * 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 ac 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? a 7 ¢ 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- ze 77 . 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: e 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 ts we) “ ——_ Foal . o* 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