Petition for Writ of Certiorari — Cuyler v. Matthews

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NOV 13 1974

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States.

- . OCTOBER TERM, 1974

No. £4~-57 3

ROBERT L. JOHNSON, Superintendent

and

DISTRICT ATTORNEY OF PHILADELPHIA .

COMMONWEALTH OF PENNSYLVANIA,

. Petitioner

- PETITION FOR WRIT OF CERTIORARI —

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

F. Emmetr Frrzpataick,

District Attorney

Ricuarp A. Spracvue,

First Assistant District Attorney

AsraHaM J. GaFni,

Deputy District Attorney for Law,

Sreven H. Goupsxart,

Aasistant District Attorney,

Chief, Appeals Division.

Bonnie Bricance LEADBETTER, ;

Assistant District Attorney

Desorax E. Grass,

Assizzant District Attorney.

PRESS OF ALLEN, LANE @ 2 PHILADELPHIA

INDEX

PAGE

Opvinioxs Betow 1

JURISDICTION 2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVISION INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 4

II.

III.

The Decision Below Is In Confliet With Decisional

Law And Principles Of Law Enunciated By This

Ee ng ik eck ae heen

The Decision Below Is In Conflict With Decisions

And Prineiples Of Law Enunciated By The Courts

Of Appeals Of Other Circuits, As Well As Numer-

ous State Supreme Courts

The Decision Below Poses Serious Problems To The

Orderly Administration Of Justice In Pennsy!-

vania And Throughout The Cireuit

(ONCLUSION

APPENDICES:

EK.

. Order Entered By The Court Of Appeals

. Opinion Of The Court Of Appeals .

. Opinion Of The District Court, Incorporating The

Report And Recommendation Of The United States

Magistrate ‘ee AE ea

Opinion Of The Pennsylvania Supreme Court

Other State Courts Adhering To The Rule Struck

Down By The Lower Court .....................

*))

TABLE OF CITATIONS

Feperat Cases:

Aldridge v. United States, 283 U.S. 308 (1931)

Belton v. United States, 382 F.2d 150 (D.C. Cir. 1967)

Berra v. United States, 351 U.S. 131 (1956)

Douglas v. California, 372 U.S. 353 (1963)

Driseoll v. United States, 356 F.2d 324 (1st Cir. 1966)

Fuller v. United States, 407 F.2d 1199 (D.C. Cir. 1968)

Giaecio v. Pennsylvania, 382 U.S. 399 (1966)

Goodall v. United States, 180 F.2d 397 (D.C. Cir. 1950)

Horning v. District of Columbia, 254 U.S. 135 (1920)

Keeble v. United States, 412 U.S. 205 (1973)

Linkletter v. Walker, 381 U.S. 618 (1965)

Mapp v. Ohio, 367 U.S. 643 (1961)

Massiah v. United States, 377 U.S. 201 (1964)

Maclllrath v. United States, 188 F.2d 1009 (D.C. Cir.

1951)

MeLeod v. Ohio, 378 U.S. 356 (1965)

Owens v. United States, 58 F.2d 685 (D.C. Cir. 1932)

Sansone v. United States, 380 U.S. 343 (1965) .

Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54 (2d

Cir. 1948) __. Fag se ete Seth kine 3 oi

Sparf v. United States, 156 U.S. 51 (1895)

United States v. Boardman, 419 F.2d 110 (1st Cir.

1969), cert. denied, 397 U.S. 991 (1970)

United States v. Cockerham, 476 F.2d 542 (D.C. Cir.

DR Poke han wees oe eA

United States v. Comer, 421 F.2d 1149 (D. C. Cir. 1970)

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972)

United States v. Dougherty, 473 F.2d 1113 (D.C. Cir.

BE wan tou te saceaerlat ons Laebeckae dedi

sek T ted | yi PER Bark

United States v. Enos, 453 F.2d 342 (9th Cir. 1972)

United States v. Jenkins, 496 F.2d 67 (2d Cir. 1974)

United States «. Markis, 352 P.2d 860 (2d Cir. 1965}

United States v. Moylan, 417 F.2d 1002 (4th Cir, 1969)

United States ¢. Simpson, 460 F.2d 515 (9th Cir, 1972)

United States v. Torbert, 496 F.2d 154 (9th Cir. 1974)

United States ex rel. Black v. Russell, 435 F.2d 546 (3d

Cir. 1970)

United States ex rel. Matthews v. Johuson, —— F.2d —

(3d Cir, August 15, 1974)

United States ex rel. Matthews v. Johnson, (April 3,

1973 CLA. 73-159) (unreported decision )

United States ex rel. Victor v. Yeager, 300 F. Supp. 802

(D.N.J. 1971)

Virgin Islands v. Carmona, 422 F.2d 95 (3d Cir. 1970)

PENNSYLVANIA CASES:

Commonwealth v. Heard, 451 Pa. 125, 301 A.2d 870

(1973)

Commonwealth v. Johnson, 451 Pa. 528, 304 A.2d 139

(1973) ;

Commonwealth v. Jones, — Pa. —. 319 A2d 142

(1974)

Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62

(1972)

Commonweelth vv. Matthews, 446 Pa. 65, 285 A.2d 510

(1971)

Commo iwealt i ov. Ward, 442 Pa. 351, 275 Ad 92

(1971)

Orier AUTHORITIES:

United States Constitution, Amendment Fourteen, See-

tion One

Pa. Stat. Ann., tit. 19 § 1180 ¢f. seq. (1974)

15 ina Ab EAA bases JAR

PAGE

OCTET aden se Rapes ks ft eee |

Sok ae eee

NAT OR VED RE DET ET Re ne a RI i RIE FO rR Nal De oe tna

pow . — oon on - - “ 4 am, apes Pee ROR atta i eet nT

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

ROBERT L. JOUNSON, Supertintendent

and

DISTRICT ATTORNEY OF PHILADELPHIA

COMMONWEALTH OF PENNSYLVANIA,

. Petitioner

WILLIAM MATTHEWS, Respondent

Petirion For Writ or Cerriorant

To ‘rue Unrrep Srares Courr or APPEALS

For tue Truirp Cirevir

The petitioner Commonwealth of Pennsylvania re-

speetfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Third Cireuit entered in

the above-entitled case on August 15, 1974.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet re-

ported, is set out as Appendix B. The unreported

opinion of the District Court for the Eastern District

of Pennsylvania, adopting and incorporating the Re-

aE ae FE ke RE ENA te ero DIRS I LT siggs

| o_o ll ee ‘ “

usta tenis det

Sy ces git ”

seat uatis

port and Recommendation of the United States

Magistrate, is set out as Appendix C. The opinion of

the Supreme Court of Peunsylvania, reported as Cov-

monwealth v. Matthews, 446 Pa. 65, 289) Ad O10

(1971), is set out as Appendix D.

JURISDICTION

The order of the Court of Appeals for the Third

Circuit was entered on August 15, 1974. A petition

for rehearing with permission for oral argument was

filed with leave of court and was denied on September

1%, 1874. This petition for certiorari was filed within

ninety days of the original order..This Court's juris-

diction is invoked under 28 U.S.C, § 1254(1).

QUESTION PRESENTED

Does the due process elause of the Fourteenth

Amendment require state trial courts, upon request.

to instruct the jury on the lesser inchided offense of

voluntary manslaughter in all eases, inciuding felony-

murder eases, even where there is no ecidence what-

ever to reduce the degree of the erime below murder

in the first degree?

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment Fourteen,

Section One.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

foree any law which shall abridge the privilege or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor

deny to any person within its jurisdiction the

equal proteetion of the laws.

e . <4: - “ aE ie 4s ce ee Td ee ee en

STATEMENT OF THE CASE

William Matthews, respondent herein, was convicted

of the first degree murder of Randolph Butts, who

died as the resuli of knife wounds sustained when

assaulted and robbed as he left an apartment build

ing in Philadelphia. Respondent was sentenced to life

imprisonment.

‘Respondent filed a direct appeal with the Supreme

Court of Pennsylvania. In that appeal. he asserted as

one of his several grounds for relief that the trial

judge erred’ in refusing a specific request to submit

voluntary manslaughter to the jury as a possible

verdict. Cn December 29. 1971, the Pennsylvania

Supreme Court affirmed the judgment of sentence,

with two justices dissenting. Commonwealth v. Mat-

thews, 446 Pa. 65, 285 A.2d 510 (1971).

Respondent next filed a petition fer writ of habeas

corpus in the United States District Court for the

astern Distriet of Pennsylvania. On Mareh 5, 1975,

the United States Magistrate issued a Report and

Recommendation in which he reviewed each of re-

spondent’s claims, and concluded that he was entitled

to relief beeause the trial judge refused to submit >

voluntary manslaughter to the jury as a possible ver-

diet. He further concluded that all other claims were

without merit. On April 3, 1973, the Honorable John

Morgan Davis issued an order approving and adopt-

ing the Report and Reeommendation of the magistrate

and granting the petition for writ of habeas corpus.

United States ex rel. Matthews v. Johnson (April

3. 1973 CLA, 73-159) (unreported).

The Commonwealth appealed.': and the case was

argued before a panel of the United States Court of

‘No appeal was taken by respondent from the Distriet Court's

order denying relief on other grounds

ll Sipps rece ee ene . ’

5 . Fr 0% rae

IF PR 8. us ae ee

VPLS PBL AIOE NMI lent a ———

Appeals \for the Third Cireuit. The Court, sua sponte,

ordered rehearing en bane, providing }lso that the

case was \to be submitted without oral argument. On

August 15, 1974, the Court of Appeals|aflirmed the

order of the Distriet Court, United States ex rel.

Matthews \v. Johnson, — F.2d — (3d Cir. August

15, 1974). The Commonwealth’s petition for rehearing

with permission for oral argument was ddnied by the

Cort en banc on September 19, 1974.

REAS NS FOR GRANTING THE WRIT

I. The degision below is in conflict with \decisional

law enunciated by this Court.

pf a new

eld that:

process

ants in

le same

*, upon request duly made, te\ have a

a verdict of voluntary manslaughter

rst and second degree murder

In affirminy the Distriet Court's grant

trial to respdndent, the Court of Appeals ]

We believe that the safeguards of duc

will be satisfied only when all defen

Pennsylvania murder trials are given t

opportuni

jury retur

as well as

Appendix B at

The Court of

vrounds:

indietment.

2. Where juries

been upheld, even

ported only first degree murder.

3. At the time o

Pennsvivania law

Matthews’ conviction and appe

vested the determination as \to

* The Pennsylvania Supreme Court has sinee changed the rule pur-

suant to its supervisory pipwers. See Seetion TIT, infra.

whether to give the charge in the sound discretion of

the trial judge. The trial courts were given no hard

and fast guidelines with respect to the exercise of that

diseretion, except the rule that the charge was re-

quired where there was any evidence tending to re-

duce the erime to manslaughter, but was not required

where there was no such evidence.

This holding is in direct conflict with Sparf v.

United States, 156 U.S. 51 (1895). There, this Court

specifically rejected the claim raised by Matthews

in the court below. Mr. Justice Harlan observed:

[1 |n this case, it was competent for the court to

say to the jury that, on account of the absence

of all evidence tending to show that the defend-

ants were guilty ef manslaughter, they could not,

consistently with law, return a verdict of guilty

of that erime.

x * 7: 4 *

To instruet the jury in a criminal case that the

defendant cannot properly be convicted of a

crime less than that charged, or to refuse to

instruct them in respect to the lesser offenses

that might, under some circumstances, be in-

cluded in the one so charged---there being no evi-

dence whatever upon which any verdict could be

properly returned except one of guilty or one

of not guilty of the particular offense charged—

is not error: for the instrueting or refusing to

instruet, under the cireumstances named, rests

upen legal principles or presumptions which it

is the province of the court to declare for the

guidance of the jury.

Td. at 101, 108. , '

Nevertheless, the Court of Appeals attempted to

distinguish Sparf by stating:

| a

The Supreme Court in Sparf | was| confronted

with issues of statutory construction only.

Appendix B at p. 28.

This Court in Sparf, however, deseribed the issue

presented as being one of Constitutional dimension:

Briefly stated, the contention of the aceused

is that, although there may not have been any

evidence whatever to support a verdict of

guilty of an offense less than the one charged,

—and such was the ease here,—vet, to charge the

jury, as matter of law, that the evidence in the

ease did not authorize any verdict exeept one of

guilty or one of not guilty of the particular

offense charged, was an interference with their

legitimate funetions, and therefore with the con-

stitutional right of the aecused to be tried by a

jury.

Sparf, supra, at 99,

The principles underlying its holding have not

been eroded over the vears and, indeed, have been

reaffirmed. Berra v. United States, 351 US. 131

(1956): Scusone v. United States, 880 USS. 343, 349-

DO (1965): Neeble ve United States, 412 US. 205

(1973).

II. The decision below is in conflict with decisions

and principles of law enunciated by the Courts of

Appeals of other circuits as well as the vast majority

of State Supreme Courts.

The opinion below is squarely in conflict) with

settled law in the District of Columbia Circuit, which

has heid thet a manslaughter charge is not require:

where wholly unsupported by the evidence. In Belion

v. United States, 382 F.2d 150 (D.C. Cir. 1967),

that court observed:

“—

We agree with. counsel that an accused is en-

titled to an instruction on manslaughter if there

is “any evidence fairly tending to bear upon the

issue of manslaughter,” however weak, and tliat

the court may not intrude on the province of the

jury which may find credibility in testimony that

the judge may consider completely overborne by

the “simply overwhelming” evidence of the prose-

cutor.... And there may be “some evidence” of

a lesser offense even though this depends on an

inference of a state of facts that is ascertained

by believing cele sea as te part of his testimony

and proseention witnesses on the other points in

dispute.

Hlere there was no testimony “fairly tending”

to bear on manslaughter—i.e. fairly tending to

show that deceased unjustifiably assaulted appel-

lant with a gun, he wrested the gus from her

contral, and then shot her in the heart .... [This

is} a ease where the charge requested “was

objectionable as based on speculation without

foundation in the evidence.

~ - * = 7

We suggest that where the issue is close, the

request of defense counsel may properly be given

the benefit of the doubt. The danger of giving

the jury a power to make punishment lenient (by

downgrading the offense) is offset in part by the

diseretion available to the trial court on sentene-

ing. And it is appropriate to take into account

the strain on judicial administration resulting

from the need for retrial if the position of the

trial court is not sustained on appeal. But even

such an approach presumes that the trial court

will be reasonably alerted to the factual predic-

ate underlying the instruction requested. Here

the testimony did not “fairly tend” to bear on

CS RARE INI LI

manslaughter, and we cannot assign reversible er-

ror to the failure of the trial court to glean and

array on its own motion the strained possibilities

of events put forward by counsel who have mulled

over the appeal, but not advanced at trial either

by defense counsel or the witnesses.

Td. at 155-56 (footnotes and citations omitted). See

also, Fuller v. United States, 407 F.2d 1199, 1228-29

(D.C. Cir. 1968), United States v. Comer, 421 F.2d

1149, 1158-55 (D.C. Cir. 1970). A manslaughter in-

struction is not required where the facts do not sup-

port such a verdict although the jury has the clear

power to bring in a lesser offense conviction even

where the evidence shows only first degree murder,

and such a verdict will not be upset on appeal if

exercised, See, e.g., Owens v. United States, 58 F.2d

68d (D.C. Cir. 19382); Goodali v. United States, 180

F.2d 397 (D.C. Cir. 1950).

In addition to the Court of Appeals for the District

of Columbia, forty state courts have held that a

manslaughter charge is not required where un-

supported by any evidence. A listing of these states,

and the state court cases so holding, is set forth as

Appendix E.

The holding below also eontlicts in principle with

the law of several otler circuits. Thus, in United

States v. Markis, 352 F.2d 860 (2d Cir. 1965),

gambling tax case, Judge Friendly observed:

The lesser-included offense charge is not required

siinply because the jury could exercise its power

of acquitting on the greater charge for no reason

at all “in the teeth of both law and facts.”

Horning v. District oi Columbia, :‘ 25F U.S. 135,

138, 41 S. Ct. 53, 54, 65 L. Ed. 185 (1920); there

musi. be a rational basis for its doing so. Precisely

this, we think, is the distinction between Sparf v.

United States, 156 U.S. 51, 63-64, 15 S.Ct. 273,

39 L. Ed. 343 (1895), and Stevenson v. United

States, supra, 162 U.S. at 315, 322-328, 16 8. Ct.

839, 40 L. Ed. 980, both cited by the Court with

apparent approval in the recent cases of Berra

and Sansone.

Id. at 867.

In Driscoll v. United States, 356 F.2d 324 (1st Cir.

1966), another wagering tax decision, the First Cireuit

held: |

We take Sansone to mean that when the gov-

ernment has made out a compelling case, uncon-

treverted on the evidence, on an element required

for the charged offense but net for the lesser-

included offense, there is a duty on devendant to

come forward with some evidence on that issue

if he wishes to have the benefit of a lesser-

included offense charge. To put it another way,

while a judge cannot prevent a jury from reject-

ing the prosecution's entire case, he is not obli-

gated, under these circumstances, to assist a jury.

in coming to an irrational conclusion of partial

acceptance and partial rejection of the prosecu-

tion’s ease by giving a lesser-ineluded offense in-

struction. Two prerequisites seem vital: that there

be no ‘actual dispute and that a finding contrary

to che only evidence on the issue would be

irre.tional.

Id. at 327. Accord, United States v. Enos, 453 F.2d

342 (9ik Cir. 1972) (assault and battery with a deadly

weapon); Maclllrath v. United States, 188 F.2d 1009

(D.C. Cir. 1951) (assault and battery with a danger-

ous weapon).

senha UR ae al OR RRS NR TR ee rte tonne :

CS be EWR HT DEV!

Pe eer ee Ce ee ee

aD.

While this case deals with the power of juries to

reach a verdict for an unsupported lesser offense “in

the teeth of the evidence,” juries also possess—and

sometimes exercise—the power to render an outright

acquittal inexplicable save that they are overcome by

sympathy, or else are deaf, dumb and blind. Upon

oceasion defense counsel have pressed trial judges to

inform the jury that they may aequit if they believe

the defendant was morally justified even though guilty

under the law. For obvious reasons, no appellate de-

cisions have been reported where the trial court ac-

quiesced in such a request. The trial court's refusal,

however, has been noted by several Courts of Appeals

with emphatic and uniform affirmance. For instance,

in United States v. Simpson, 460 F.2d 515 (9th Cir.

1972), it was said:

The “conscience verdicts” which result from

exercise of this power often involve juries in the

task of judging both law and fact. Even though

facts may logically compel conviction under the

law, we suspect that acquittal has nevertheless

occasionally followed a jury's rejection of stated

legal principles. This is a disturbing recognition,

for in most courts, including those in the federal

system, such decisions conflict with the principle

that “it is the duty of juries in criminal cases to

take the law from the court and apply that law

to the facts as they find them to be from the

evidence.” Sparf and Hanson v. United States,

156 U.S. 51, 102, 15 S. Ct. 273, 293, 39 L.Ed. 343,

361 (1895): see Moylan, supra, 417 F.2d at

1005-1007.

However, as long as general verdicts are ren-

dered in criminal cases, certain verdicts that may

3 Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

be reasonably thought to rest upon the juror’s

rejection of the law will occur. They cannot be

detected, since the courts “eannot search the

minds of the jurors to find the basis upon which

they judge.” Moylan, supra, at 1006, See, also

United States v. Sisson, 294 F. Supp. 511 (D.

Mass. 1968). We acknowledge the truth that ail

such verdicts, especially when viewed in hindsight,

cannot reasonably be said to have been unde-

sirable.

The basie question here is whether justice

would be better served by instructing jurors as

Simpson requested and thus opening the way for

more “conscience verdicts.” We think not. We

agree with the decision in Moylan that the rule

set forth in Sparf and [Manson remains correct.

Id. at 519 (footnote omitted). And in United States

v. Dougherty, 473 F.2d 1113 (D.C. Cir, 1972), it was

noted:

The pages of history shine on instances of the

jury’s exercise of its prerogative to disregard

uncontradicted evidence and instructions of the

judge. Most often commended are the 18th cen-

tury acquittal of Peter Zenger of seditious libel,

on the plea of Andrew Hamilton, and the 19th

century aequittals in prosecutions under the fugi-

tive slave law. The values involved drop a notch

when the liberty vindicated by the verdict relates

to the defendant's shooting of his wife’s para-

mour, or purchase during Prohibition of aleoholic

beverages.

Even the notable Dean Pound commented in

1910 on positive aspects of “such jury lawless-

ness.”

@ oe e eo e

OI et ORL RIO Bing OD

pa ae

goes ais

pore Barat dat

When the legal system relegates the informa-

tion of the jury’s prerogative to an essentially

informal input, it is not being duplicitous, charge-

able with chicane and intent to deceive. The limi-

tation to informal input is, rather a governor to

avoid excess: the prerogative is reserved for the

exceptional case, and the judge’s instruction is

retained as a generally effective constraint.

e s e ® eo

In the last analysis, our rejection of the re-

quest for jury nullification doctrine is a reecogni-

tion that there are times when logie is not the

only or even best guide to sound conduct of

government.

e e * * t «

What makes for health as an occasional medi-

cine would be disastrous as a daily diet. The fact

that there is widespread existence of the jury’s

prerogative, and approval of its existence as a

“necessary counter to case-hardened judges and

arbitrary prosecutors,” does not establish as an

imperative that the jury must be informed by the

judge of that power. -

Td. at 1130, 1135, 1136. Accord, United States v.

Moylan, 417 F.2d 1002 (4th Cir. 1969); United States

v. Dellinger, 472 F.2d 340, 408 (7th Cir. 1972) ; United

States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),

cert. denied, 397 U.S. 991 (1970).

Thus, other Circuits have, on a closely analogous

issue, recognized that the delicate balance of law

and merey which we term justice derives its strength

from the very flexibility and defiance of formulation

that characterizes jury behavior. The key to this

balanee is necessarily vested in the trial court and its

instructions. It was precisely this recognition which

MON AILS LM he *

the court below found offensive in the opinions of the

Pennsylvania Supreme Court.

III. The decision below presents serious problems to

the orderly administration of justice in Pennsylvania

and throughout the Circuit.

On May 2, 1974,’ the Pennsylvania Supreme Court

decided Commonwealth v. Jones, — Pa. —. 319 A.2d

142 (1974), holding:

We therefore, under our supervisory power,

rule that henceforth a defendant under indict-

ment of murder will be entitled, upon request, to

have the jury advised of its power to return a

verdict of voluntary mausiaughter.

Id. at __. 319 A.2d at 148.

The decision of the Court of Appeals nonetheless

presents several serious problems both in Pennsyl-

vania and in the other jurisdictions within the Third

Cireuit.

The Supervisory Rute

Of course. the most obvious such difficulty is that

the Pennsylvania Supreme Court cannot now retract

their new procedural rule if it proves unsatisfactory

in practice. The charge if foreed upon the trial judge

in an inappropriate case may prove confusing, and

might actually mislead the jury. It was observed that

“(T]welve men can easily misunderstand more law

in a minute than the judge can explain in an hour.”

Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54, 60

(2d Cir. 1948). Indeed, when a prior practice has

proven problematical, supervisory rule-making powers

can be used to see if a new practice will rectify the

difficulty. Yet there is no guarantee that the new rule

4 While the instant case was pending in the Court of Appeals.

te DL LT Se ne Beppe os

ni a sal, CO LGET ced et > a

will not create new—and perhaps worse—problems

of its own. If that oceurs, the new rule can be re-

scinded or modified. However, by finding such a rule

to be Constitutionally mandated, the Court of Ap-

peals has locked the Pennsylvania courts into the new

procedure whether it proves workable or not. This

difficulty is at the moment somewhat speculative; the

other problems which follow are more immediate and

serious.

Prior Murder Convictions in Pennsylvania

In its decision, the Court of Appeals refused to

decide the issue of retroactivity. However, three

members cf the Court were persue ed that the issue

should be determined, so the opin.on of the Court

discussed the issue in dictum. It is clear that the

Court felt that two alternatives were available: com-

pletely retrospective application, and application only

to cases pending on direct appeal. Either of these

courses threatens to unsettle numerous first and sec-

ond degree murder convictions. Considering only

persons in prison or on parole supervision’ as of

October 15, 1974, 1640 persons are presently in cus-

tody in Pennsylvania on first or second degree murder

convictions. Of these persons, 682 have exhausted

their rights to a direct appeal. Under Pennsylvania

law, if a direct-appeal type retroactivity were decided

upon, the ruling would apply to the remaining 956

prisoners and parolees by way of a nunc pro tunc

direct appeal. Commonwealth v. Linde, 448 Pa. 230,

293 A.2d 62 (1972); Commonwealth v. Heard, 451 Pa.

125, 301 A.2d 870 (1973) (applying Mapp v. Ohio, 367

U.S. 643 (1961) to 1958 and 1956 convictions, respec-

* According to statistics provided by the Pennsylvania Bureau of

Corrections and the Pennsylvania Board of Probation and Parole.

* According to dockets of the Pennsylvania Supretie Court. —

gt Pe RO OLS EE PLOT EPL AE POOLE NG ED GERI BC IA LE PROG te O85 SEV LAI LILLE: TIM PORE PRN ESLECE, HNGORE LG LODE Mi SS OWE DROID SL IEE CLOG AM

tively)’: Commonwealth v. Johnson, 451 Pa. 528, 304

A.2d 139 (1973) (applying Massiah v. United States,

377 U.S. 201 (1964) to a 1946 conviction).© The nuxc

pro tunc direct appeal is a common deviee in Penn-

svlvania, often mandated by Douglas v. California,

379 US. 353 (1963), but which is virtually granted

for the asking. During the years 1971—( November)

1974, 907 eases were listed pursuant to petitions filed

under the Pennsylvania Post Conviction Hearing

Act. Pa. Stat. Ann, tit. 19 § 1180 ef seq. (1974). Of

these, 195 petitioners were granted the right to file a

direct appeal mic pro tare (21.5%). It is impossible

to aseertain of the bulk of these petitions how many

had already taken direct appeals, how many had pled

cuilty so that right to a direet appeal would be mean-

ingless,” and how many of the remainder even re-

quested the right. However, of the 264 eases in which

opinions were written during this period, 60 requested

the right. Kighteen of these requests were meaning-

loss. either beeause the petitioner had plead guilty or

nolo contendere, or beeause he had already taken a

counselled direct appeal. Of the 42 remaining re-

quests, 35 were granted (58.36 of the total requests)

and only 7 denied, where a clear waiver of appellate

rights appeared from the record. It is thus clear

that a Linkletter-type retroactivity would threaten a

far greater number of cases than the 294 presently

pending on direct appeal.

Of course, regardless of the type of retroactivity

chosen, only those cases in which the charge was re-

7 Under the authority of Linkletter v. Walker, 381 U.S. 618 (1965).

* Under the authority of Mcleod v. Ohio, 378 U.S. 356 (1965).

® Because following a guilty (or nolo contendere) plea, appellate

rights are limited to issues fully cognizable on collateral attack.

United States ex rel. Black v. Russell, 435 F.2d 46 (3d Cir. 1970);

Commonwealth v. Ward, 442 Pa. 351, 357, 275 A.2d 92 (1971).

Fins .

A PEER NOENIN OLOIEETE LE

. uP 3 oe IGRI TEER SE IY IAAT ONE LONE (ALEPH T 0 AERA s

- -_ ao PF ICL WAL Ln PPP ERES OF TYE MOTT, - -

é a tal TN Re CR roe D et NN, SRS,

Snes Va ERUPT ER tN Le be en i

quested and denied would be affected by the decision

below."* Manpower and time limitations have pre-

cluded examination of more than a sampling of ree-

ords, Nonetheless, the statisties thus compiled can

give the Court some notion of the magnitude of cases

affected. OF the 294 murder convictions presently

pending before the Pennsylvania Supreme Court, 129

are Philadelphia County convictions listed for the

November, 1974, argument session. Of these, SO ree-

ords were examined, (The remainder were guilty-

pleas, non-jury trials or unavailable reeords)."' Of

the SO records examined, 12 defendants requested the

charge and were refused. (In another 7 cases, the

instruction was not given and a general exception

was taken to the charge.) Thus, of the LOT available

records, 112° of the total eases and Lote of the

actual jury trials would be overturned as a result

of the decision below.’

Vrojecting these statistics into the data conceruing

the number of persons in custody, the operative tig.

ure is 11.26, since it is not clear how many of the

1640 murder convictions were non-jury dispositions.

On this basis, it would appear that approximately

IS4 persons would have to be re-tried under a rule

of complete retronetivity. If a direct-appeal, or Link.

letter-type retroactivity were decided upon, two cate-

gories of persons would be entitled to relief. First.

of the 294 murder convictions presently pending in

'° This is not to deny, however, the inevitable deluge of frivolous

litigation by persons who never requested the charge, and ineffective

assistance claims against attorneys who did not request the charge.

127 were non-jury dispositions; 22 were unavailable files on jury

trials,

2 Additionally, jury trials were reviewed which are presently pend-

ing post-trial motions in Philade!phia County following convictions

for first and second degree murder. 45 such records were available for

examination. Of the-e, 5 would require new trials (11.5°).

COLD P TEENIE NER GA CELIO Li 9

GE EE DME IOT, PPS, At Som es oe de ee eee

LO ROR OTRO ARE ——

the Supreme Court of Pennsylvania, 11.2% or ap-

proximately 33 convietions would be overturned. In

addition, another 21.5° of the persons in custody

would be able to obtain a direct appeal nunc pro fiaic

or 353 persons. OF these, then, approximately 40

would obtain new trials. Thus a total of approxi-

mately 73 murder convictions would be upset under

a Linkletter-type rule. ;

An alternative method of caleulating the number

of nune pro tune appeals which might be affected is

to estimate that of the 846 persons in custody who

have not exhausted direct appeal rights, 112° or 107

will be entitled to a new trial if they appeal. .\ssum-

ing that these persons will request the right to a

nunc pro tune direct: appeal, approximately 98.5%

will be granted the right upon request, or G2 persons.

Adding this te the 33 estimated new trials arising

from the eases presently pending before te Pennsyl.

vania Supreme Court, an estimated %) convietions

would be overturned,

Other durisdiction Within The Circuit

While the Court of Appeals purported to limit

its holding and analysis to the Pennsvivania practice,

the other jurisdictions in the Cireuit appear to have

essentially the same rule, (See Appendix E). Indeed,

‘no 18TL. another Habeas Corpus petitioner in’ the

United States District Court in New Jersey raised

the same due process issue upon which respondent was

eranted relief. The New Jersey petitioner's claims

were denied, and no appeal was take). United States

ex rel. Victor v. Yeager, 300 F.Sup,. S02 (D. Nad.

1971). In a direet appeal from a Virgin Islands

murder convietion, appellant claimed that -the district

court erred in refusing to charge on manslaughter,

The Court of Appeals in that case held that there was

t OOP ee

arms LOR AOT I, .

a i, a ee

SOMA AAI

et hn GOT Re

PALIN ONL A PE ITS SS BE 2k SARTRE PPAR re ort

the evidence did not

diet. Virgin Islands vy.

no right to the charge sin

support a manslaughter ve

Carmona, 422 F.2¢95 (3d Cin. 1970). Nevertheless, in

the decision below, the Courf distinguished its prior

holding by saying that Carmana was concerned with

statutory construction only, ad that the due process

issue had not been presented in the earlier ease.

Thus the decision below leaves both state and

federal courts with great unceftainty concerning the

validity of the rules and practice in effect in Delaware,

New Jersey, and the Virgin Islands. A great deal of

litigation is certain to arise in those jurisdictions be-

fore the confusion created by the decision below is

dissipated. By accepting review, this Court can fore-

close needless litigation and eliminate uncertainty and

confusion in these jurisdictions.

Other Types of Lesser Included O

A problem similar to the one diseussed above is

that although the holding below Was limited to. re-

quiring a manslaughter charge in ja murder indict-

ment, there is no basis in precedent gr logie for draw-

ing a distinction between the murder/manslaughter

question and lesser included offelse instructions

generally, The decisions of this Court\cited in Section

I above, as well as decisions of other Courts of

Appeals and state courts treat the different types of

vases as but different applications of\a single prin-

ciple of law. Nor is there any hint in} the language

of the decision below whieh would showjany reason to

set the crime of murder apart from|other erimes

whieh, by statute or caselaw, contain necessarily in-

cluded lesser offenses. State courts are thus left to

speculate whether the new rule will be applied to all

types of lesser ineluded offense instructions or

PNSES

RO eee ore teers

whether the holding will be strietly limited in future

cases to the facts in Matthews. Therefore, the trial

courts are left by the decision below with the sort of

eonfusion and uncertainty which breeds voluminous

litigation until the matter is finally setled. Since the

Court below has announced a holding which repre-

cents both a conflict with other federal courts, and

portends confusion and litigation among its own lower

courts, the issue ean best (and most expeditiously)

he settled by this Court.

“

The Function of the Trial Judge

At the very heart of the due process holding by

the Court below are the assmmptions that Penn-

svlvania trial courts were vested with an “unfettered

diseretion” to determine when to give the man-

slaughter charge while being furnished with no “guide-

lines” for the exereise of that discretion. The Com-

monwealth would suggest that both of these premises

miseonstrue Pennsylvania law. However, this argu-

ment will be more appropriately reserved to the brief

on the merits of the case.

The conclusion flowing from these assumptions is,

however, pertinent to the Commonwealth's request

to this Court for review. Citing Giaecio Vv. Penn-

syivania, 382 U.S. 399 (1966), the Court below held

that a trial court may not, within the confines of due

process, exercise diseretion on trial rulings unless

provided with specifie rules for the exercise of that

discretion.

It goes without saying that this conclusion repre-

cents 2 considerable extension of the limited hold-

ing in Giaccio, which dealt with the power of a jury to

assess a fine for any unspecified misconduct and the

ability of an aceused to defend against unnamed and

entirely unspecified charges. The holding of the Court

REA mEgReReRCo NS

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- PD OED Rt PMR,

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VONG2ES rs 5 cali ae ie

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below would destrey the function of the trial judge

as it is known in Anglo-Naxon jurisprudence.

Throughout a trial, particularly a jury trial, the court

is called upon to make countless judgments upon

issues which are vested in his “sound diseretion.” A

minor partial list. would inelude continuance — re-

quests, severance requests."* voir dire,” limitation of

cross-examination, sequestration of the jury. bail, and

sentencing. In all of these situations no specific guide-

lines are given to the trial courts, other than perhaps

some minimum standard of fairness due the aeeused

and some seattered cases holding that a defendant was

vot entitled to some particular request whieh was

refused him (precisely the same sort of minimum

giudelines'® the court below found inadequate).

Thus, the decision below throws into question virtu-

ally the entire judicial funetion. To a large extent

the orderly control of a trial depends upon the exer-

cise of diseretion of the trial judge, and in particular

upon his ability to act with a wide degree of latitude

to fit the ruling to the partieular circumstances of

the case. The portent of the ruling below on the

function of the trial judge boggles the imagination.

Finally, the relief fashioned by the Court below to

satisfy its due process holding is nothing short of

frightening. Since some trial courts may give the

charge even though others do not when the evidence

does not support it, the Court below reasons that due

process requires that a// defendants be given the

v. Cockerham, 476 F.2d 542, 544 (D.C. Cir. 1973).

'" United States v. Jenkins, 496 F.2d 57, 67-68 (2d Cir. 1974).

'S United States v. Torbert, 496 F.2d 154 (th Cir. 1974).

'® That the charge is required where any evidence would support

the verdict, and that the aceused is not entitled to the charge where

there is no such evidence.

lies in the essential unappealability of rulings— erro-

neous or not--favorable to the defendant, and the

practice of some trial courts of erring in close cases

in the defendant's favor rather than risking reversal

on appeal. Because of these realities, any situation

calling for the exercise of discretion will inevitably

result-in some instances of defendants getting benefits

to which they are not by law entitled. but which

‘cannot be appealed by the state.

If every time such benefits are given in oceasiona!

cases, due process requires an extension of the bene-

fit to all defendants. the eventual result will be te

throw the seales of justice far out of balanee. An

“error” which unfairly benefits the state will be

promptly corrected on appeal. An “error” which un-

fairly benefits the accused will not be corrected, and

uitimately will be extended to all others. Under such

a system excesses favoring the state would be dis-

allowed, but excesses favoring a defendant would

not only go uncorrected, but would become the

standard.

Finally, the trial judge is put in an altogether un-

tenable position. His rulings must be error-free,

even in the most diffieult) and delicate situations.

Ile must always tread a fine line between reversal

and the prespect of making bad law.

For the reasons set forth above, the due process

holding of the Court below threatens to wreck havoe

with the traditional function of the trial judge, and

throw our system of criminal justice out of balance.

NY Be OD AAPG ALL la PL

FOILED IER vee om :

CONCLUSION

It is therefore respectfully submitted that a writ of

certiorari should issue to review the decision of the

Third Circuit.

Respectfully submitted,

F. Emnetrr Firzpatrrick

District Attorney

Ricuarp A. SpraGue

First Assistant District Attorney

ABRAHAM J. GAPNI

Deputy District Attorney for Law

Sreven H. Goipsiarr

Assistant District Attorney

Chief, Appeals Division

Bonnie Bricgance LEADBETTER

Assistant District Attorney

Depornan Bf. Grass

Assistant District Attorney

INDEX TO APPENDICES

A. Orders Entered by the Court of Appeals .. 24

B. Opinion of the Court of Appeals .....-+-- 27

C. Opinion of the Distriet Court, Incorporating the

Report and Recommendation of the United

States Magistrate .....----2seeer ee reeee 64

. Opinion of the Pennsylvania Supreme Court Sl

_ Other State Courts Adhering to the Rule Struck

Down by the Lower Court ......---+-+-- 96

oon tad’ ete Den Saal ine

ey eu

APT eT, ee) tees

APPENDIX A

Orvers ENrerep By THE Court or APPEALS

UNITED STATES COURT OF APPEALS

For tHe Tuirp Cirevir

No. 73-1424

UNITED STATES ex rel.

WILLIAM MATTIIEWS

ROBERT L. JOMUNSON, Supt.

District ATTORNEY OF PHILADELPHIA

COMMONWEALTH OF PENNSYLVANIA,

Appellant

. * * - ~ é

(D. C. Civil No. 73-159)

Ow Aprpreat From tur Unirep States District Court

For THE MasterN District or PENNSYLVANIA

Present: Seitz, Chief Judge, and Katopner, Van

Dvusex, Avpiserr, Apams, Gippons, Rosen,

Hester, Wers and Gartnu, Circuit Judges.

JUDGMENT ON REHEARING

This cause came on to be heard on the record from

the United States District Court for the Eastern Dis-

trict of Pennsylvania and was argued by counsel and

later submitted on rehearing en bance.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

. oo

pvt Ae at «x : ieineiiiiatan as

caid District Court, filed April 4, 1973, be, and the

same is hereby affirmed. Costs taxed against appellant.

ATTEST:

Clerk

August 15, 1974

UNITED STATES COURT OF APPEALS

For THE THIRD CircvIT

No. 73-1424

UNITED STATES OF AMERICA ex rel.

WILLIAM MATTHEWS

ROBERT L. JOHNSON, Superintendent, State

Correctional Institution, Graterford, Pennsylvania

COMMONWEALTH OF PENNSYLVANIA,

Appellant

At the direction of the Court,

It is ORDERED that the petition for rehearing by

the Appellant be and hereby is filed out of time as of

the date it was received, namely, August 30, 1974.

For the Court,

Clerk

Dated: September 18, 1974

FW RU ar 16 AFT TA OS Se ANB TE a eR

26 ss

UNITED STATES COURT OF APPEALS

For tHE Tuirp Circuit

No. 73-1424

UNITED STATES OF AMERICA ex rel.

WILLIAM MATTHEWS

ROBERT L. JOHNSON, Superintendent, State

Correctional Institution, Graterford, Pennsylvania

COMMONWEALTH OF PENNSYLVANTA,

Appellant

SUR PETITION FOR REHEARING

Present: Seirrz, Chief Judge, and Kavopner, Van

Dvusex, ALpisert, ApaMs, Gisppons, Rosenn,

Hunter, Weis and Garta, Circuit Judges.

The petition for rehearing filed by

Anvellant

in the above entitled case having been submitted to

the judges who participated in the decision of this

court and to all the other available cireuit judges of

the cireuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit im

regular active service not having voted for rehearing

by the court in bane, the petition for rehearing is

denied.

By the Court,

/s/ ALDISERT

Judge

Dated: September 19, 1974

PEE COW NMS SLO, Py S OE Oo, ERT A aR OS LALLY LO ERLE MELE LALA ELE IL fP CELA LE TALLIS GLY LG REA A aaa

% APPENDIX B

Opinion OF THE CouRT OF APPEALS

CORRECTED COPY

UNITED STATES COURT OF APPEALS

For tHE Tuirp Circuit

—_—_——

No. 73-1424

UNITED STATES OF AMERICA ex rel.

WILLIAM MATTHEWS

ROBERT L. JOHNSON, Superintendent

DISTRICT ATTORNEY OF PHILADELPHIA,

COMMONWEALTH OF PENNSYLVANIA, Appellant.

AppeaL From THE UNITED Srates District Court FoR THE

Eastern District orf PENNSYLVANIA

(District Court Civil Action No. 73-159)

Argued January 15, 1974

Before: Seitz, Chief? Judge, and Kaopner, and

Aupisert, Circuit Judges.

Submitted in banc under Third Circuit Rule 12(6)

May 15, 1974

Before: Siz, Chief Judge, and Katopner, Van Dusen,

Aupisert, ApaMs, Gissons, Rosen, Huntes, Weis

and Gaxtu, Circuit Judges.

OPINION OF THE COURT

(Filed August 15, 1974)

Abraham J. Brem Levy, Esq.

Philadelphia, Pennsylvania

CounseEL For APPELLEE

bs ne FREE LFE> - PH PENS CLOT

PEF opae: ALR NED OPE ‘, Eee Wes cas ¥

me as

POMEL LPL LAL LEE LL LEE LLL DLA ALELA LL AAAI LEAD

Judith Dean, Assistant District

Attorney

Milton M. Stein, Assistant District

Attorney, Chief, Appeals Division

Richard A. Sprague, First Assistant

District Attorney

Philadelphia, Pennsylvania

CounsEL FoR APPELLANT

Aupisert, Circuit Judge.

This court is required to resolve a knotty Fourteenth

Amendment problem in Pennsylvania murder trials which

has evenly divided the justices on that state’s highest

court.1 We are to decide whether, in a prosecution on a

murder indictment, the Fourteenth Amendment requires

the trial court, upon request, to give the jury the option

of returning a verdict of voluntary manslaughter.? Adopt-

ing a Magistrate’s Report and Recommendation, the dis-

trict court reasoned that becanse Pennsylvania case law

permits a jury verdict of voluntary manslaughter in the

absence of evidence supporting the elements of that of-

fense,*’ and also permits the trial court to exercise its dis-

cretion in deciding whether to give instructions on volun-

1. Commonwealth v. Davis, 449 Pa. 468, 297 A.2d 817 (1972).

2. Smce May 2, 1974, Pennsylvania substantive law requires the man-

slaughter instruction to be given. In an equally divided court three justices

( Ss, Pomeroy and Manderino) rested the decision on constitutional

grounds. Three ( “eh y= and O’Brien) relied on an exercise of the court's

supervisory power: “We therefore, under our supervisory power, rule that

henceforth a defendant under indictment of murder will be entitled, spon

request, to have the jury advised of its power to return a verdict of voluntary

manslaughter.” Commonwealth v. Jones, — Pa. —, — A.2d — (1974) (Slip

Opinion, Nix, J. at 9). Because the new Pennsylvania rule does not apply to

this appellant we must still decide the constitutional issues raised in this appeal.

3. [W]here the evidence would be sufficient to support a conviction of

murder, the return of a verdict of voluntary manslaughter is strictly within

the jury's prerogative even in the absence of provocation and passion.

Commonwealth v. Hoffman, 439 Pa. 348, 356-557, 266 A.2d 726, 731 (1970).

See Commonwealth v. Butcher, 451 Pa. 359, 304 A.2d 150, 153 (1973). See

also authorities collected in Commonwealth v. Jones, supra, separate opinions

of Nix, J., p. 2 n.2; Roberts, J., p. 1 n.1.

PIM, TIT - PETES Sed re : i PRO LAR IDET ALG BOE LER Ei Laat be RAD cong ere Me

tary manslaughter,‘ a failure to submit the issue to the

jury. violated the defendant’s constitutional rights of Due

Process and Equal Protection. Accordingly, it granted a

writ of habeas corpus. The Commonwealth appealed.

Without reaching the Equal Protection issue, we affirm.

The relevant facts were summarized briefly in Com-

monwealth v. Matthews, 446 Pa. 65, 285 A.2d 510, 511

(1971):

From the evidence, the jury was warranted in

finding that Matthews, on February 23, 1968, acting

in concert with his nephew, James Williams, and a

friend, James Jackson, robbed Randolph Butts in

Philadelphia and during the perpetration of the rob-

bery Butts was stabbed four times by one of the

felons, causing injury which resulted in Butts’ death.

We begin our analysis with the Pennsylvania substan-

tive law of voluntary manslaughter. For federal purposes

we accept Justice Pomeroy’s statement of the appropriate

state law:

While it is considered felonious, voluntary man-

slaughter is the least culpable form of homicide in-

cluded within a murder indictment. Thus, when con-

sidering the degree of culpability of an individual being

tried under such an indictment, a jury may return a

voluntary manslaughter verdict if it finds that the

killing, although intentional, was committed without

malice; that is, the accused may be shown to have been

acting under the influence of sudden passion which’

was caused by legally adequate provocation that placed

him beyond the control of reason.” See e.g., Common-

4. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955).

5. The difference in culpability between first or second degree murder and

voluntary manslaughter 1s reflected in the punishments which accompanied

wealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968);

Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908).

These elements need not always be present, however,

to support a voluntary manslaughter verdict. Penn-

sylvania courts have long accepted the common law

rule that the jury has the power to find a defendant

guilty of voluntary manslaughter even in the absence

of passion or provocation, where the evidence is suf-

ficient to support a first or second degree murder

verdict. Commonwealth v. Hoffman, 439 Pa. 348, 266

A.2d 726 (1970); Commonwealth v. Kellyon, 278 Pa.

59, 122 A. 166 (1923); Commonwealth v. Gable, 7 Serg.

& R. 423 (1821). Although superficially such a rule

may seem incongruous, it does have a rational basis.

In essence, the rationale of the rule is founded on two

considerations: (1) the legal concept that voluntary

manslaughter is by definition a lesser offense than

murder but one included within a murder indictment,

(2) a realistic appreciation of the fact that factors

such as sympathy or extenuating circumstances may

lead a jury to find a defendant guilty of the lesser in-

cluded offense of voluntary manslaughter even though

the evidence is enough to establish guilt of murder in

the second or even the first degree. Commonwealth

v. Hoffman, supra.

1, (Cont’d.)

conviction of these respective offenses at the time of this offense. A conviction

for first degree murder carried with it death or life imprisonment. Sanctions

that were imposed upon one found guilty of second murder included

imprisonment for a term not exceeding twenty rs_and a fine of up to ten

dollars. “act of June 24, 1939, P.L. 872, §701, 18 Pa. Srar. Anno.

$4701. Punishment for voluntary, manslaughter, in contrast, could not exceed

twelve years imprisonment and six thousand dollars fine. Act of June 24,

1939, supra, § 18 Pa. Start. “Anne. § 4703. Title 18 of the Consolidated

Pennsylvania yoy he was amended oe Sever 6, 1972, effective June 6, 1973.

murder remains the same. Act of Decembe

Ci PE No 34, $1. 18 Pa. Star. Ano. § 1102 (1975). Punishment

for nhs MSF is imprisonment for not more than twenty years.

Voluntary manslaughter is punishable by imprisonment for not than

years. Maghah ey OEE §1, 18 Pa. —. ANNO. § 1103 The

maximum punishment for voluntary manslaughter has been reduced by two

Imposed upon this conceptual framework is a sec-

ond rule. . . . That rule gives a trial judge complete

discretion in deciding whether or not to submit volun-

tary manslaughter to the jury as a possible verdict

in a case where there is no evidence of passion or

provocation.* See, ¢.8., Commonwealth v. LaRue, 381

Pa. 113, 112 A2da 362 (1955); Commonwealth v.

Yeager, 329 Pa. 81, 196 A. 827 (1938). The reason

for this rule is said to be that a charge on a point

or issue which is unsupported by any evidence ‘‘. . -

is likely to confuse the jury and obstruct Justice.’’

Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807

(1966).

Commonwealth v. Matthews, supra, 285 A2d at 517.

II.

The genesis of the federal constitutional problem is

the anomaly that although the jury has unfettered power

to return a voluntary manslaughter verdict as a lesser

included offense of a murder indictment, it could not do

so if the trial judge refused to charge on this point. Thus,

whether the jury was given this opportunity was solely

dependent upon the unrestricted discretion of the trial

judge.’ Justice Pomeroy, speaking for himself and Justice

| Roberts, concluded :

the request for a voluntary mentee.

tried on or after May 2, 1974. However, the practice wou

ttyl obtain in all cases not within the purview of the new rule.

7. Coy bet tradition and constitutional mandate the jury is given the

cespansibiity, of determining guilt, or innocence according to) instrwetions st

i law delivered by the court. United States v. Berrigan, 482 F.2d 371, 175

: (3d Cir. 1973). Fundamental to the judicial system is the pri ciple that it is

b the court, and not the jury, which defines the legal elements the offense

and limits the alternatives open to the jury in returning a verdict. ewe

Cohen stated in his dissent in Commonwealth v. Pavillard, supra, A2d

How is a jury able to exercise its power [to return a verdict of guilty of

manslaughter} when it is never advised that it has such power?

en A EM OAS AE LLL LEDER

YAMS ornate

Commonwealth v. Matthews, ssspra, 285 A.2d at 518.8

tional issue:

285 A.2d at 514.°

again argued:

— A.2d at — (Slip Opinion at 10), answered the due process contention thusly :

neat Se

In my view, the due process and equal protecti@n

clauses of the Fourteenth Amendment require the

abandonment of the procedure now again sanctione

by the court. Due process is violated where a stat

procedure denies to those subject to it the funda

mental fairness required in a system of ordered liberty:

Rochin v. California, 342 U.S. 165, 169, 72 S. Ct. 205,

96 L. Ed. 183 (1952). The procedure here, grounded

as it is upon the exercise of absolute discretion by the

trial judge, without the benefit of any objective stand-

ards to guide him, is patently arbitrary and unfair.

The majority in Matthews did not meet the constitu-

Appellant next asserts the trial court committed

error in refusing a specific request to instruct the

jury on voluntary manslaughter, and also in failing

to submit to the jury such a finding as a 1 ssible

verdict. Sinee there was no evidence which po:nted

in the slightest degree to the offense of manslaughter,

the court’s action did not constitute error. Common.

wealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955);

and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632

(1938).

8. In Commonwealth v. Davis, supra, 297 A.2d at 819, Justice Pomeroy ’

[B]ecause the choice whether or not to charge is discretionary with the

trial judge, and he has been furnished with no objective standards for his

guidance, the challenged practice offends due process, . .". ’

9. The opinion in support of affirmance in Commonwealth v. Jones, supra,

The opinion in support of reversal predicates its constitutional objec-

tions on the assumption that under the rule existing at the time of this

trial “the choice whether or not to charge [on voluntary manslaughter]

is discretionary with the trial judge, and he has been furnished with no

objective standards for his guidance.” We cannot accept the assumption

upon which these arguments are premised. The rule in question was based

upon a theory of lesser included offenses. For this purpose, manslaughter

‘

;

Fe Ah at Rae NT kn kk AL a FIED 0 LEY RPL LO HOD Mpa e WC tn OWI

ill.

Thus, to offset Justice Pomeroy’s constitutional con-

ontions we must\ turn to the argument presented by the

‘ommonwealth. Jt builds first on Sparf v. United States,

56 U.S. 51 (1895), whieh approved a jury charge given

na trial for murder on the high seas, which charge in-

tructed the jury that it was not authorized to return a

verdict of manslayghter because there was no evidence

showing that erime. The Court stated: ‘‘A verdict of

ruilty of an offense less than the one charged would have

been in flagrant disregard of alt the proof, and in violation

by the jury of their obligation to render a true verdict.

There was an entire absence of evidence upon which to

rest a verdict of guilty of manslaughter or simple assault.

A verdict of that kind would have been the exercise by

the jury of the power to commute the punishment for an

offense actually comm tted, and thus impose a punishment

different from that pr sseribed by iaw.’’ Id. at 64. More-

over, the Commonwea th directs us to Government of the

Virgin Islands v. Carmona, 422 F.2d 95, 101 (3d Cir. 1970),

in which we held ‘‘there was no error in failing to charge

9. (Cont'd.)

was defined in the traditional sense. Thus, it was reasoned that the right

to the charge existed only where evidence of provocation and passion coul

be found. Necessarily, where there was an absence of provocation an

passion there was no right td such a charge. Cf., Keeble v. United States,

412 U.S. 205 (1973). “

This statement, however, defines the defendant's right to a charge on voluntary

manslaughter, while still leaving \to the trial judge the ultimate decision on

whether such a charge should iven. See infra, p. 13.

ikewi y, Davis, supra, 207 A.2d at 821, Justice

O'Brien, speaking for himself, Chi¢f Justice Jones and Justice Eagen, reasoned

that under Pennsylvania law “a endant is entitled to a charge on the law

of mana Sughter only when there i some evidence to support such a verdict.”

He did not meet the constitutional \ issues raised but concluded that the facts

“any evidence of passion or provocation

53 Pa. 389, 309 A.2d 384 (1973), the

‘ nce to support a verdict of mansloughier

and therefore he was entitled to an\ instruction thereon. A majority of the

court held that there was no evidence \of passion or provocation and the refusal

to instruct was not error; no const utional issues were discussed. Justices

Roberts, Pomeroy and Manderino ssented for the reasons expressed by

Justices Roberts and Pomeroy in Matthews and Davis.

—_

BRA. PTS. APY ONIE 4

—— ye,

iad Ah a pn oe a A Dead, te aaa And coe ram ede Becca ached

BS PRP EIGN De

SOK a Rc LS hLDA Stl SRB TEND WRIT Ie Se

as to voluntary manslaughter in the circumstances of the

instant case. As there was no evidence of a quarrel or

fit of passion, the jury could not have correctly found

Carmona guilty of voluntary manslaughter,” citing

Stevenson v. United States, 162 U.S. 313, 315 (1896).

Next, the Commonwealth argues that notwithstanding

these and other cases, courts have found it necessary to up-

hold a defendant’s conviction of a lesser included offense

where a trial judge erroneously submitted the offense to

the jury. The underlying rationale of these latter cases is

that the Constitutional prohibition against double jeop-

ardy '’ barred correction of the trial judge’s error.

But neither Sparf nor Carmona meets the Due Process

argument properly presented in these federal habeas corpus

proceedings. The Supreme Court’in Sparf and this court

in Carmona were confronted with issues of statutory con-

struction only ;" neither discussed the Pennsylvania prac-

tice presently under review.”

The Commonwealth then emphasizes that ‘‘(n]o court

has held that because jury instructions not recognized by

the law and overly favorable to one defendant were given

at his trial, that thereafter every defendant is entitled to

those same instructions.’’'* Underlying this argument is

the assumption that, in Pennsylvania, the jury could not

properly return a verdict of voluntary manslaughter on a

murder indictment absent evidence of passion or provoca-

tion. However the common law" and Pennsylvania sub-

stantive law recognize the jury’s ‘‘power,’’’ indeed ‘‘pre-

10. One found guilty of a lesser offense is impliedly acquitted of the greater

offense, thereby prohibiting retrial on the higher caarge. Green v. United

States, 355 U.S. 184 (1957).

11. Section 1035 of the Revised Statutes and its successor provision

F.R. Crim. Pro. 31(C), the federal “lesser offense” statutes.

12. The Commonwealth cited various state court decisions from other juris- >

dictions. These cases also do not address themseives to the Pennsylvania it

practice.

13. Commonwealth brief at 13.

14. Commonwealth v. Jones, supra.

15. “[T]he jury had the power, even though the evidence established mur-

der, to find a voluntary manslaughter verdict.” Commonwealth v. Kellyon,

supra, 122 A. at 167 (emphasis supplied).

POY ELL ML NIP DELONAS LYALL GAG”, TI ALDI PTA IO LSD IM, LT BOR KOLCT MLO AM OLE LO PIAL AIO Ia CFL DAS DN

A ALERT ALI ALD A NAL RLE LALA IAA IEICE

rogative,’’'*® to return such a verdict if the court submits

the issue to them. Moreover, in upholding such verdicts,

the Pennsylvania Supreme Court has not relied on double

jeopardy grounds but on the twofold consideration stated

recently in Commonwealth v. Hoffman, supra, 266 A.2d at

732: ‘‘a realistic appreciation of the humanity of those who

sit on our juries and the legal concept that voluntary man-

slaughter is by definition a lesser included offense than

murder but one included in a murder indtetment.”’

Our research has not disclosed a Pennsylvania

Supreme Court decision which unequivocally held that, on

an indictment for murder, it would be error for a trial

judge to charge on voluntary manslaughter where there

was no evidence of passion or provocation. The court has

had numerous opportunities to do so’ but instead has

framed its holding in terms of what a defendant has a right

to expect or whether the trial court’s refusal to instruct

was in error. These cases still leave the final decision on

whether to charge within the discretion of the trial judge.

We now proceed to a consideration of the Due Process

argument.

IV.

At a time when the contours of procedural due process

were beginning to become visible, Mr. Justice Cardozo

recognized the difficulty in establishing a universal defini-

tion of due process: ‘The line of division may seem to be

-_ —_——— —_—

16. See footnote 3, supra. In Commonwealth wv. Robinson, 305 Pa. 302,

157 A. 689, 692 (1931), the court approved the following instruction given

by the trial judge in a murder case:

While we have defined to you the crime of voluntary manslaughter, we

say to you, members of the jury, as we view the case, there is no evidence

in it that would warrant a verdict of voluntary manslaughter, although, in

the absence of evidence, it is within your power to render such a verdict,

because, in the crime of murder, the jury always has the right to fix the

degree of the homicide.

17. See cases cited in Commonwealth v, Jones, supra. Slip Opinion, Nix,

Jat int. We note that the opinions in support of affirmance in neither

Commonwealth v. Jones, supra, nor Commonwealth v. Davis, supra, quoted

any Pennsylvania cases with language to this effect.

a a ll hl atid

PRL OT RIAN IT TM NIH Ts TUR NIN EF

wavering and broken if there is a hasty catalogue of the

cases on the one side and the other. Reflection and analysis

will induce a different view. There emerges the perception

of a rationalizing principle which gives to discrete instances

a proper order and coherence. * * * Does it violate those

‘fundamental principles of liberty and justice which lie at

the base of all our civil and political institutions’?’’ Palko

v. Connecticut, 302 U.S. 319, 325, 328 (1937) (citations

omitted)."* Later Mr. Justice Frankfurter would empha-

size that ‘‘[rJegard for the requirements of the Due Process

Clause ‘inescapably imposes upon this Court an exercise of

judgment upon the whole course of the proceedings [re-

sulting in a conviction] in order to ascertain whether they

offend those canons of decency and fairness which express

the notions of justice of English-speaking peoples even

toward those charged with the most heinous offenses.’ ’’

Rochin v. California, 342 U.S. 165, 169 (1952) (citation

omitted).

In the decades which have followed, the Supreme Court

has not formulated a bright line definition. But, in dis-

cussing the right to a jury trial in a criminal case, the Court

expressed this country’s historic desire to minimize arbi-

trary judicial activity: ‘‘The framers of the Constitution

strove to create an independent judiciary but insisted upon

further protection against arbitrary action. Providing an

accused with the right to be tried by a jury of his peers

gave him an inestimable safeguard against the corrupt or

overzealous prosecutor and against the complaint, biased

or eccentric judge. * * * Beyond this, the jury trial pro-

visions in the Federal and State Constitutions reflect a

fundamental decision about the exercise of official power—

a reluctance to entrust plenary powers over the life and

liberty of the citizen to one judge or to a group of judges.”’

Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (emphasis

supplied).

18. While the substantive ruling in Palko was overruled in Benton @.

Maryland, 395 U.S. 784 (1969), the essence of these remarks still obtains.

Cf., Roe v. Wade, 410 U.S. 113 (1973).

Wie ADE ALR iss aes

0 Ree ie ee

To recite these broad-base principles is to reinforce

the conclusion reached by Pennsylvania Justices Roberts,

Pomeroy and Manderino in Commonwealth v. Jones, supra,

that the Pennsylvania practice did not comport with the

protections extended this appellee by the Constitution. At

the time he was tried, the jury was given the option of re-

turning a verdict of murder in the first degree calling for

life imprisonment or death,” or alternatively, a verdict of

murder in the second degree, calling for a sentence of up

to twenty years. Another trial judge, or the same judge

on another day, could have permitted the jury to return a

verdict of voluntary manslaughter, calling for a sentence

of no more than twelve years. To deny appellee the pos-

sibility of a lesser verdict with a lesser restraint of liberty

is permissible only if the denial comports with due process.

To deny appellee the possibility of a lesser restraint of

liberty because of a practice which permits arbitrary trial

court activity is offensive to those settled concepts of due

process.

The opinion in support of affirmance”’ in Common-

wealth v. Davis, supra, 297 A.2d at 821, essentially acknowl-

edged the absence of standards prior to May 2, 1974:

“(T]he establishment of standards for application in all

cases must await further development of our case law... .”’

A lack of any standard to guide a decision which has the

capability of restricting the liberty or property of a de-

fendant would seem to offend settled concepts of due

process. Thus, in invalidating a Pennsylvania practice

which failed to furnish a criminal court jury with standards

to guide a decision as to whether costs should be imposed

upon a defendant in whose favor a not guilty verdict was

rendered, the Supreme Court found the practice ‘‘vague

and standardless,’’ and therefore offensive to due process:

19. Appellee was convicted in 1968 four years before the Supreme Court's

decision in Furman 7. Georgia, 408 L 3S. 238 (1972).

20. This opinion was authored 1, Justice O'Brien and he was joined by

Chief Justice Jones and Justice Eagen. Although Chief Justice Jones took no

part in the consideration or decision of Commonwealth v. Jones, supra, Justices

O’Brien and Eagen were among the three justices opting for a supervisory rule.

It is established that a law fails to meet the re-

quirements of the Due Process Clause if it is so vague

and standardless that it leaves the public uncertain as

to the conduct it prohibits or leaves judges and jurors

free to decide, without any legally fixed standards,

what is prohibited and what is not in each particular

case. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451;

Baggett v. Bullitt, 377 U.S. 360. This 1860 Pennsyl-

Wrania Act contains no standards at all, nor does it

place any conditions of any kind upon the jury’s power

to impose costs upon a defendant who has been found

by the jury te be not guilty of the crime charged

against him. * * * Certainly one of the basie purposes

of the Due Process Clause has always been to protect

a person against having the Government impose bur-

dens upon him except in accordance with the valid laws

of the land. Implicit in this constitutional safeguard ~

is the premise that the law must be one that carries an

understandable meaning with legal standards that

courts must enforce. This state Act as written does

not even begin to meet this constitutional requirement.

‘~~ Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966).

It is undisputed that there are no ‘‘legal standards

that courts must enforce”’ in giving or not giving the man-

slaughter charge in a Pennsylvania murder indictment.

Acvordingly, we conclude that the powerful rationale of

Giaccio commands a similar result in this case.

We believe that the safeguards of due process will be

satisfied only when all defendants in Pennsylvania murder

trials are given the same opportunity, upon request duly

made, to have a jury return a verdict of voluntary man-

slaughter as well as first and second degree murder.*" To

21. It appears that Pennsylvania law requires that a jury be told that

they can return a verdict of second degree murder in all first degree murder

cases. “ Commonwealth v. Gibbs, 366 Pa. 182. 76 A.2d 608 (1950): Commen-

tecalth v. Davis, supra, 297 A.2d at 822 n.1 (O'Brien, J.. Opinion in Support

of Affirmance).

A es ht Ie AL - ‘ee i PING TIE AL AAT EEE OAR

hold otherwise is to expose a defendant to the idiosyncracies

of the trial judge to whom the case has been assigned, or

the ‘whim or caprice’’* of a given judge on a given day.

Accordingly, we affirm the judgment of the district court.”*

The Commonwealth advances the argument that ‘‘ {ilf

this Court should conclude that a valid constitutional issue

is presented, it would be inappropriate to reverse Mat-

thews’ conviction.”’ (Commonwealth brief at 6n.1.) It

reasons that this defendant has suffered no prejudice be-

cause the jury in fact returned a verdict of first degree and

not second degree murder. Thus, the Commonwealth argues

harmless error. This contention overlooks the possibility

that if a jury had three options instead of two, the jury

could have compromised on the middle ground of second

degree. Although of course no one can say with precision

that given three alternatives, the jury has a greater proba-

bility of compromise, we do recognize that with three alter-

natives, at least ‘‘there is a reasonable possibility’’ of

compromise. Schneble v. Florida, 405 U.S. 427, 432 (1972).

Therefore, we cannot say that failure to give the charge

‘‘was harmless beyond a reasonable doubt.’? Chapman v.

California, 386 U.S. 18, 24 (1967). ~Moreover, the Pennsyl-

vania Supreme Court has long recognized and approved

the compromising propensities of juries. Commonwealth

22. Commonwealth v. Matthews. supra, 285 A.2d at 517 (Pomeroy, J.,

dissenting ).

22a. Judge Kalodner in dissent argues that this is a felony/murder case

and that “existence of passion and provocation . . . is of no relevance.” citing

Commonwealth v. Meleskie, 278 Pa. 387, 123 A. 310 (1924). However, we

are concerned here not with the existence or relevance of such evidence but

rather with the jury's ability to exercise its power to return a verdict of

voluntary manslaughter. absent supportive evidence.

This power of the jury has not been denied in felony/murder cases. See,

Commonwealth v. Butcher, supra. Indeed, we note that neither opinion in

Commonwealth v. Jones, supra, explicitly exempts felony/murder cases from

the requirement that a charge on voluntary mansiaughter be given upon request.

23. See Roger Traynor’s incisive discussion, “Evaluating the Effect of

Frror: A Sliding Scale of Probabilities,” Traynor, THE RippLe oF HARMLESS

Exror, (1970) 33-37.

ee hase 2

| OS PM RIS Ste LY NETO ME HOE

wees

fo ™ — s

v. Kellyon, supra, 122 A. at 168; Commonwealth v. Hoff-

man, supra, 266 A.2d at 732. This recognition dilutes the

potency of the harmless error argument advanced by the

Commonwealth.

VI.

Cognizant of the potential pervasive ramifications of

the ruling we announce today, Judges Rosenn, Weis and the

writer of this opinon are willing to consider the retro-

activity issue. A majority of the court have concluded that

the issue should not be resolved in this case.

In Witherspoon vr. Illinois, 391 U.S. 510 (1968), the

Court squarely decided the retroactivity issue when it an-

nounced its ruling:

We have considered the suggestion . . . that we

shduld ‘‘give prospective application only to any new

constitutional ruling in this area’’. . . . [We] have

concluded that neither the reliance of law enforcement

Officials . . . nor the impact of a retroactive holding on

the administration of justice . . . warrants a decision

against the fully retroactive application of the holding

we annour’e today.

391 U-S. at 523 1.22. And in its most recent pronouncement

in the area of prisoners’ rights, Wolff 7. WeDonnell, — U.S.

— (42 U.S.L.W. 5196, June 26, 1974), the Court had the

opportunity to defer ruling on the retroactivity of its newly

announced procedures. It did not. Instead, the Court fol-

lowed its lead in Vorrissey vr. Brewer, 408 U.S. 471, 490

(1972), and decided the retroactivity issue:

The Court of Appeals held that the due process re-

quirements in prison disciplinary proceedings were to

apply retroactively so as to require that prison records

containing determinations of misconduct, not in accord

with required procedures, be expunged. We disagree

and reverse on this point.

ODES OOF i PAINE FE GL

2-0 2 YATE EDDIE ILEL PINAL OE NTI LIME LEY OE AIOE

“

—— ee

The question of retroactivity of new procedural

rules affecting inquiries into infractions of prison dis-

cipline is effectively foreclosed by this Court’s ruling in

Morrissey that the due process requirements there an-

nouneed were to be ‘‘applicable to future revocations

of parole,’’ 408 US., at 490 (emphasis supplied). De-

spite the fact that procedures are related to the in-

tegrity of the fact-finding process, in the context of

disciplinary proceedings, where less is generally at

stake for an individual than at a criminal trial, great

weight should be given to the significant impact a retro-

| activity ruling would have on the administration of all

| prisons in the country, and the reliance prison officials

placed, in good faith, on prior law not requiring such

procedures. During 1973, the Federal Government

alone conducted 19,000 misconduct hearings, as com-

pared with 1,173 parole revocation hearings, and 2,023°

probation revocation hearin :s. If Morrissey-Scar pelli

rules ure not retroactive out of consideration for

burden on federal and state officials, this case is

a jortiori. We also note that a contrary holding would

be very troublesome for the parole system since per-

formance in prison is. often a relevant criteria for

parole. On the whole, we do not think that error was

s so pervasive in the system under the old procedures to

warrant this cost or result.

———E————E EE

42 U.S.L.W. at 5201. Thus, we find no precedential impedi-

ment to reaching the retroactivity issue in this case.

In United States v. Zirpolo, 450 F.2d 424, 431-433 (3d

Cir. 1971), we set forth in detail the basie teachings of the

Supreme Court.“ Basically we observed :

In passing on the question of retroactivity, the

Supreme Court considers three factors:

Ne eas

24. This case readily lends itself to the Linkletter analysis and it is t -

fore unnecessary to use the approach taken in Robinson v. Neil, 409 U.S. 505

(1973). There, the Court noted that the Linkletter test “is simply not appro-

priate” in terms of nonprocedural guarantees. Id., at 508. Here we are

dealing with a procedural rule.

(a) the purpose to be served by the new standards,

(b) the extent of the reliance by law enforcement

authorities on the old standards, and (c) the effect

on the administration of justice of a retroactive

application of the new standards.

Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970

(1967); Desist v. United States, 394 U.S. 244, 89 S. Ct.

1030, 22 L. Ed, 2d 248 (1969): Johnson v. New Jersey,

384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966);

. Tehan v. United States ex rel. Shott, 382 U.S. 406, 86

S. Ct. 459, 15 L. Ed. 2d 453 (1966); Linkletter v.

Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601

(1965).

450 F.2d at 432.

‘*Foremost among . . . [the foregoing] factors is the

purpose to be served by the new constitutional rule.’’

Desist v. United States, supra, 394 U.S. at 249 (footnote

omitted). In United States v. Zirpolo, supra, we noted that

‘*(g]enerally, rulings not primarily Gesigned to enhance the

reliability of the fact-finding or truth-determining process

have not been applied retroactively,’’ 450 F.2d at 432 and

eases cited therein. We are dealing here only with those

eases in which there is no evidence of passion or provoca-

tion.” Therefore, our ruling does not go to the jury’s

ability to determine the presence vel non of the elements of

the crime but rather to the jury’s ability to exercise its

‘thistorically recognized mercy dispensing power.’’ Com-

monwealth v. Jones, supra, — A.2d at — (Slip Opinion,

Nix, J., at 8.) Nothing we decide today affects the fact-

finding process. We also recognize with Mr. Justice Bren-

nan that ** ‘the question whether a constitutional rule of

criminal procedure does or does not enhance the fact-finding

process at trial is neeessarily a matter of degree.’ Johnson

25. Where there is a evidence of passion or provocation in a murder

case, a defendant is entitled to a charge on voluntary manslaughter. Common-

wealth v. Flax, 331 Pa. 145. 200 A. 632, 636 (1938) ; Commonwealth v. Dews,

429 Pa. 555, 239 A.2d 382, 385 (1968).

v. New Jersey . . . [384 U.S. 719], at 728-729. The extent

to which a condemned practice infects the integrity of the

truth-determining process at trial is a ‘question of prob-

abilities.’ 384 U.S., at 729. Such probabilities must in

turn be weighed against the prior justified reliance upon

the old standard and the impact of retroactivity upon the

administration of justice."’ Stovall v. Denno, supra, 388

U.S. at 298.

The significant extent to which the Pennsylvania trial

courts relied on the prior state of the law is obvious. See

Commonwealth v. Matthews, supra; Commonwealth v.

LaRue, supra; and Commonwealth v. Pavillard, supra. The

decision we reach today was not foreshadowed by prior

cases. Stovall v. Denno, supra, 388 U.S. at 299. And we

recognize that the application of full retroactivity could

have a profound effect on the administration of criminal

justice in Pennsylvania. The Supreme Court has relied

on this factor in denying full retroactivity: United States

v. Wade, 388 U.S. 218 (1967), and Gilbert v. California,

388 U.S. 263 (1967) (line-up cases) held non-retroactive in

Stovall v. Denno, supra; McCarthy v. United States, 394

U.S. 459 (1969) (on the correct procedure for acceptance

of guilty plea) denied retroactive application in Halliday

v. United States, 394 U.S. 831 (1969).

All three considerations indicate that full retroactivity

should not be accorded this decision. See casey collected

in United States v. Zirpolo, supra, 450 F.2d at 431-433.

As in Zirpolo, we would ‘‘eonclude that our decision . . .

[should] apply only to those cases . . . fin which a jury

instruction for voluntary manslaughter was properly and

timely requested and] if trials have been completed, are

on direct appeai [in the Pennsylvania courts] on this date.’’

450 F.2d at 433.

The judgment of the district court granting a writ

of habeas corpus will be affirmed unless the Commonwealth

of Pennsylvania affords Matthews a new trial within such

reasonable time as the district court shall fix following

return of the mandate.

Apams, Circuit Judge, concurring:

I concur with the majority's conclusion that the Penn-

sylvania practice challenged here operated to deprive

Matthews of due process of law.

Ordinarily, I exercise great caution and considerable

hesitancy before concluding that a state practice or statute

- is unconstitutional. However, the Supreme Court of Penn-

sylvania has just recently ordained that, upon request,

every murder defendant in the Commonwealth is entitled

to a voluntary manslaughter instruction, whether in felony

murder or general murder trials.'' Although that ruling is,

by its terms, made prospective only, it indicates that Penn-

sylvania has abandoned whatever stake it may have had

in the rule of criminal procedure that a defendant is not

entitled to such an instruction absent evidence of passion

or provocation. Thus, the effect worked upon Pennsyl-

vania’s criminal justice system by the Court’s ruling today

is not seriously at odds with Pennsylvania’s own percep-

tion of its interests. In these circumstances, we generate

no undue friction, or at least a minimum of exacerbation,

between a state and the federal system by holding the

former Pennsylvania practice unconstitutional.

I agree with the majority that the lack of any articu-

lable criteria for the giving or withholding of a man-

slaughter instruction where there was no evidence of pas-

sion or provocation made for standardless, ‘‘ad hoc and

episodic’’ justice,? and as such constituted a violation of

due process." It would seem unwise, however, simply to

accept a statement from a dissenting opinion in Common-

wealth v. Matthews‘ as a conclusive exposition of prior

Pennsylvania practice. Rather, in my judgment, we are

1. Commonwealth v. Jones, — Pa. —, 319 A.2d 142 (1974).

2. .Rochin v. California, 342 U.S. 165, 172 (1952).

3. It would appear that Giaccio v. Pennsylvania, 382 U.S. 399 (1966),

provides an apt description of the due process guideline to be applied in this

case.

4. Majority Opinion at 7.

} 45

bound to survey all the Pennsylvania Supreme Court opin-

ions on the subject, and to determine from them what ap-

pears to have been the Pennsylvania rule or practice. Hav-

ing undertaken such an examination, | am satisfied that,

in the past, trial judges in Pennsylvania had discretion to

give or withhold a manslaughter instruction where no evi-

dence of passion or provocation had been adduced. In no

case that has come to my attention did the giving or with-

holding of the instruction lead to a reversal, or even to

critical comment by the reviewing tribunal.

The dissent has pointed out that Matthews was found.

guilty of felony murder, as distinguished from a general

murder charge, and that, whatever the situation regard-

ing general murder, a judge under Pennsylvania law is

‘justified in refusing to charge upon the law of man-

slaughter’’ in a felony murder prosecution.® This view

is grounded in the recognition that it is not logical to speak

of ‘‘passion or provocation’’ when felony murder is in-

yolved.* Although there are cases which hold that a de-

fendant is not entitled to a manslaughter charge when there

is no evidence of passion or provocation in the record, no

case has been called to my attention that has mandated the

withholding of a manslaughter charge in a felony murder

case, and, indeed, there appears to be some indication that

manslaughter charges have been given, from time to time,

when there has been no evidence of passion or provocation.

5. In this connection the dissent refers to Commonwealth v. Meleski, 123

Atl. 310 (Pa. 1924), and Commonwealth v. Davis, 297 A.2d 817 (Pa. 1972),

vert. denied 414 U.S. 836 (1973). However, in Davis, only a plurality of

three justices stated that in a felony murder prosecution it is “perfectly proper

for a trial judge to eliminate completely the jury's consideration of a volantary

manslaughter verdict.” Id. at 821

Ln LD ale oer

PO a ae EE

SLL LALLA LLL LLL EI

It is apparent, therefore, that state trial judges were with-

out standards, supplied either by the legislature or by the

appellant courts, to guide them in the giving or withholding

of voluntary manslaughter instructions, not only in cases

of general murder but in felony murder cases as well.

Moreover, there is no indication that Pennsylvania

trial judges, themselves, felt constrained by any standards

in the giving or withholding of such an instruction, whether

in general murder or felony murder cases. A review of

state decisions would appear to disclose that while some

’ juries were given the instruction, others were not,’ and

no explanation for giving or withholding such an instruc-

tion was required. Thue, besides fostering the potential

for prejudice and arbitrariness, the prior Pennsylvania

practice appears actually to have resulted in unexplicated

discrimination among murder defendants.*

Nor can this discrimination be deemed harmless be-

yond a reasonable doubt, since there is no way of ascer-

taining how the jury in this case would have responded had

it been given a manslaughter instruction.®

Kavopner, Circuit Judge, dissenting:

In the instant case the relator Matthews, acting in con-

cert with his nephew and a friend, robbed one Butts, and

7. See, ¢.g., Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973);

Commonwealth v. Butcher, supra; Commonwealth v. Dennis, 252 A.2d 671

(Pa. 1969).

8. Were there an indication that trial judges in Pennsylvania never gave

the voluntary manslaughter charge in the absence of evidence of passion or

provocation, there would be serious reservations, at least in my mind, whether

the absence of a clearly articulable standard constituted a due process violation,

Too, since Matthews was convicted for felony murder, there would be no due

process violation in this case if there were standards governing the giving of

a manslaughter instruction in felony murder cases, even if there were no

standard for general murder cases. Thus, until the Jones case, in 1974, there

were no such standards in either type of case. *

9. Harrison v. United States, 392 U.S. 219 (1968) ; Chapman v. California,

rn 1935 1967); United States <x rel. Macon v. Yeager, 476 F.2d 613

( ir. ;

MOP LIL APIO PE

2a ERP VA MEPL OY DORRIT, EL SER DOP LEAS IO EIGEN AID AGI OTE ELA EE Pe it dt ed a ha at

Et eee me RMN PAP MMPI TIS

during the perpetration of the robbery one of the felons

stabbed \Butts in the back four times ith an eight-inch

knife causing Butts’ death several hours\ later.

Matthews was tried to a jury on an indictment charg-

ing him wyth first degree murder of Butts. The trial judge,

in accordance with Perinsylvania law, in tructed the jury

that ‘‘you\may find the defendant guilty of murder in the

first degree, you may find the defendant guilty of murder

in the second degree, or you may find the defendant not

guilty.’’* ( mphasis supplied). The jury found him guilty

of first degree murder and fixed a sentence life imprison-

ment. Matthews appealed to the Pennsylvania Supreme.

Court contending, inter alia, that the trial judge erred in

refusing his request for a voluntary manslaughter instruc-

tion on the gtound that the evidence afforded no basis for

such an instruction. The Supreme Court rejected that con-

tention and affirmed the judgment of sentence, Justices

Roberts and Pomeroy dissenting. Commonwealth v. Mat-

thews, 446 Pa: 65, 285 A.2d 510 (1971).

The majority, despite its acknowledgement that coun-

sel for Matthews conceded at oral argument of \this appeal

that no evidenc¢ was adduced at the murder trial bearing

on voluntary manslaughter, nevertheless holds\that Mat-

thews was denied due process when the trial judge refused

for that reason td grant Matthews’ request for a\voluntary

manslaughter instruction.

The majority \has presented three grounds for its hold-

ing that Matthews was denied his Fourteenth Anjendment

due process guarantees.

Stated in the drder of their discussion in the

opinion, they are a follows:

(1) ‘‘{I]n a prosecution on a murder indi

the Fourteenth \ Amendment requires the trial\ court,

upon request, to\give the jury the option of retu

verdict of voluntary manslaughter.’’ (emphasi

plied).

1. Commonwealth vy. Gibhs, 366 Pa. 182. 76 A.2d 608 (1950).

“gta oreruegtet ‘

FPL. Ee Nate

(2) The Fourteenth Amendment is violated when

a voluntary manslaughter instruction is denied for lack

of evidentiary basis because ‘‘although the jury has

unfettered power to return a voluntary manslaughter

verdict as a lesser included offense of a murder indict-

ment, it could not do so if the trial judge refused to

charge on this point.’’ (emphasis supplied).

(3) The Fourteenth Amendment is violated when

a request for a voluntary manslaughter instruction is

denied on the ground that it lacks evidentiary basis,

because Pennsylvania judges have at times given the

instruction in the absence of evidence calling for such

instruction. °

I disagree with the majority’s holding that Matthews

was denied due process and its stated grounds for that

holding for these reasons:

First, as to the majority’s point that ‘‘in a prosecution

on a murder indictment, fhe Fourteenth Amendment re-

quires the trial court, upon request, to give the jury the

option of returning a verdict of voluntary manslaughter.’’

The sum of that point is that due process ‘‘requires’’

a voluntary manslaughter instruction in a murder trial

even though there is no evidentiary basis for such an in-

struction, viz., evidence of passion and provocation—criti-

cal ingredients of the crime of voluntary manslaughter.

The majority has not cited any case, federal or state,

in support of the stated point, for the very good reason

that there is none.

To the contrary, it was expressly ruled in Sparf v.

United States, 156 U.S. 51 (1895), that the murder trial

judge there did not err when he (1) refused ‘‘upon re-

quest’? to give a voluntary manslaughter instruction be-

cause of lack of evidentiary basis for such instruction; and

(2) instructed the jury that it could not properly return a

voluntary manslaughter verdict in the absence of evidence

establishing commission of that crime. 156 U.S. at 103.

In Bird v. United States, 187 U.S. 118, 132 (1902), it

was explicitly held that the murder trial judge ‘‘rightly

refused’’ a requested instruction defining principal and ac-

cessory, ‘‘because there were no facts in the case to justify

‘*°

The vitality of the holding in Sparf that a trial judge

is not required, ‘‘upon request’’ to grant an instruction

lacking evidentiary basis is attested to by its recent citation

and application in other contexts. Keeble v. United States,

412 U.S. 205, 208 (1973); Sansone v. United States, 380

U.S. 343, 350 (1965); and Berra v. United States, 351 US.

131, 134 (1956).?

In Keeble, it was said at page 208:

‘¢ Ah hough the lesser included offense doctrine de-

veloped at common law to assist the prosecution in

cases where the evidence failed to establish some ele-

ment of the offense originally charged, it is now beyond

dispute that the defendant is entitled to an instruction

on a lesser included offense if the evidence would per-

mit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater ’’ (footnote

omitted) (emphasis supplied).

This court has specifically held that a trial court does

not err in failing to give a voluntary manslaughter instruc-

tion where it lacks evidentiary basis. Government of the

2. Sparf was cited and applied in United States v. Dougherty, 473 F.2d

1113, 1133 (D.C. Cir. 1972); United States v. Dellinger, 472 F.2d 340, 408

(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973); United States v. Simpson,

460 F.2d 515, 518-20 (9th Cir 1972); and United States v. Comer, 421 F.2d

1149, 1153 (D.C. Cir. 1970).

The rationale of the Sparf doctrine that instructions should not be given

when they are without evidentiary basis was epitomized in United States v.

Dougherty, supra, as follows at page 1133:

“The jury's role was respected as significant and wholesome, but it was

att, i ae given instructions that articulated a right to do whatever it

willed.

PIF FOO NIIP TEE PITT

vere iA As DO DOAIEY oA CA SE EAA, 55 batt OA

Virgin Islands v. Carmona, 422 F.2d 95, 191 (1970). It

may be noted parenthetically that Carmona was cited by

Keeble as being in accord with its holding. 412 US. at

208 n.7. ;

The Pennsylvania Supreme Court, too, has consistently

held that a murder trial judge does not err when he fails,

or refuses, to give a voluntary manslaughter instruction

where there is no evidence to support such an instruction.’

The majority makes short shrift of Sparf and Carmona

on the ground that ‘‘[t]he Supreme Court in Sparf and

this court in Carmona were confronted with issues of statu-

tory construction only; neither discussed the Pennsylvania

practice presently under review.’’ (footnotes omitted)

(emphasis supplied).

The plain fact is that neither Sparf nor Carmona

turned on an issue of ‘‘statutory construction’’‘ and that

in both the deciding courts perceived no due process issue

in the trial judge’s failure, or refusal, to give a voluntary

3. Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973) (refusal

to charge); Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968)

(iailure to charge) ; Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807

(1966) (failure to charge) ; Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d

362 (1955) (failure to charge} ; Commonwealth v. Yeager, 329 Pa. 81, 196

A. 827 (1938) (refusal to charge); Commonwealth v. Spardute, 278 Pa. 37,

122 A. 161 (1923) (refusal to charge); Commonwealth v. Newson, 277 Pa.

48, 120 A. 707 (1923) (refusal to charge); Commonwealth v. Pava, 268 Pa.

520, 112 A. 103 (1920) (failure to charge) ; Commonwealth v. Sutton, 205 Pa.

005, 55 A. 781 (1903) (refusal to charge) ; Conimonwealth v. Crossmire, 156

Pa. 304, 27 A. 40 (1893) (failure to charge}; Brown v. Commonwealth,

76 Pa. 319 (1874) (failure to charge).

4. Sparf ruled with respect to the then extant Section 1035, R.S., pred-

ecessor of present Rule 31(c), Fed. R. Crim. P., that it “did not authorize

a jury in a criminal case to find the defendant guilty of a less offence than

the one charged, unless the evidence justified them in so doing,” and that

“[t}he only object of that section was to enable the jury, in case the defendant

was not stiown to be guilty of the particular crime charged, and if the evidence

permitted them to de so, to find him guilty of a lesser offence of attempting

to commit the one charged.” 156 U.S. at 63.

Carmona similarly construed Rule 31(c) at 422 F.2d 100 in rejecting the

defendant’s contention with respect to the failure of the trial court to charge

on voluntary manslaughter.

Rule 31(c) provides:

“Conviction of Less Offense. The defendant may be found guilty of

an offense necessarily included in the offense charged or of an attempt to

commit either the offense charged or an offense necessarily included therein

if the attempt is an offense.”

BOLLED RTE ICI BEV ELE GERI AMIEDI GELLING EDIEY CII LICL II OLS DIOL SEAL ILL IP LE DLE A GILLIE IIL Ae

pean wee RAE + NERA AE OTE MOOG

— |

woe a ah A SE A a et AIOE EINE AOS:

Ha Cre Bn aot.

manslaughter instruction in the absence of an evidentiary

basis.

It may be noted parenthetically that the federal and

Pennsylvania doctrine that a trial judge is not required to

give a voluntary manslaughter instruction unless the evi-

dence calls for such instruction, is in accord with the pre-

yailing general rule. 40 Am. Jur. 2d § 485, at 737 (1968),

set forth in the margin.’

What has been said brings us to the majority’s point

that the Fourteenth Amendment is violated when a vol-

untary manslaughter instruction is denied for lack of evi-

dentiary basis because ‘although the jury has unfettered

power to return a voluntary manslaughter verdict as a

lesser included offense of a murder indictment, it could not

do so if the trial judge refused to charge on this point.”’

(eraphasis supplied).

The majority’s statement that a jury ‘‘could not’’ re-

turn a voluntary manslaughter verdict “if the trial judge

refused to charge on this point’’ is difficult to undevstand in

light of its correct statement that a jury ‘has unfettered

power to return a voluntary manslaughter verdict as a

lesser included offense of a murder indictment.”

The majority has not cited a single Pennsylvania case

in support of its statement that a jury ‘‘eould not’’ return

a voluntary manslaughter verdict “‘if the trial judge re-

fused to charge on this point.’” The cases it discusses on

the seore of that statement afford it no nourishment

whatsoever.

To the contrary, it was recently explicitly held in

Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973)

5. “It is elementary that instructions to the jury in relation to matters not

put in issue by the proof adduced are unnecessary, and requests therefor are

properly refused. Although instructions in a homicide case may state a correct

principle of law, they ought not to be given if they are not based upon or

conform with the issues raised or facts supported by the evidence. The court

applicable to the evidence of killing in the case at bar, although the giving of

an abstract instruction is a cause for reversal only when it is reasonably

apparent that *he jury has been misled.” (footnotes omitted ).

a ene

LENE OF ENC LRI ODDIE LILIES IE IO BEG? IE RE RILE y

LLL PEER ILL SE POLIO DIO SL” ORE

ia RLY aD os

that a jury ‘‘can’’ return a voluntary manslaughter verdict

on a murder indictment even though the trial judge refused

a request for a voluntary manslaughter instruction.

In Cannon the defendant was convicted of first degree

murder. He contended on his appeal that the trial judge

erred in refusing his request for a voluntary manslaughter

instruction for lack of evidentiary basis.

In affirming the refusal of the requested instruction the

court said:

‘*Where a defendant is indicted for murder, he can of

course be convicted of manslaughter. See Common-

wealth v. Dennis, 433 Pa. 525, 252 A.2d 671 (1969).

But where there is no evidence of the elements of

manslaughter, it is not error for the trial judge to re-

fuse to submit manslaughter as a possible verdict.

[citing cases]. Without evidence of a sufficient cause

for provocation, a state of rage or passion and an in-

adequate time to cool, the trial court is justified in

denying the request for a manslaughter instruction.”’

453 Pa. at 396-97. (footnote omitted) (emphasis sup-

plied).

It may be noted parenthetically that Mr. Justice

Roberts, in dissenting in Cannon on the ground that the

trial judge erred in refusing the defendant’s request for a

voluntary manslaughter instruction, cited ‘‘the salutary

and well-settled rule’’ that ‘‘the jury may find the accused

guilty of the less offense {voluntary manslaughter] . . .

and a conviction . . . will be sustained.’’ 453 Pa. 399.

(emphasis supplied).

The Pennsylvania Supreme Court has in recent years,

time and again, affirmed a jury’s absolute ‘‘ prerogative’’ to

return a voluntary manslaughter verdict where there is

evidence to support a conviction for murder even though

there is no proof justifying the voluntary manslaughter

verdict. Commonwealth v. Butcher, 451 Pa. 359, 364-65,

PLA 8 AN IES ISDE LIL SRA LED RAO OER GAN OTN OC

MIPAS

FLD POLI LLY LEE ee ee ee eee eee en NE Meteo

>, a a ee

304 A.2d 150 (1973); Commonwealth vr. Hoffman, 489 Pa.

248, 356-57, 266 A.2d 726, 731 (1970).°

In Butcher, and Hoffman. the defendants were found

guilty of voluntary manslaughter on indictments charging

them with murder. In both cases defendants challenged

their conviction on the ground that there was no evidence

of passion and provocation, the critical ingredients of the

crime of voluntary manslaughter.

In rejecting that contention, the court in Butcher said:

‘*Appellant’s last argument is that a verdict of

voluntary manslaughter should not be permitted when

the evidence does not support such a verdict. How-

ever, this Court has consistently held that a jury may

in a murder prosecution return a verdict of voluntary

manslaughter even where there is no evidence of pas-

sion or provocation. As stated in Commonwealth v.

Hoffman, 439 Pa. 348, 356-57, 266 A.2d 726, 731 (1970) :

‘Few propositions are better established in the criminal

law than the doctrine that where the evidence would

be sufficient to support a conyiction of murder, the re-

turn of a verdict of voluntary manslaughter is strictly

within the jury’s prerogative even in the absence of

provocation and passion.’’’ 451 Pa. at 364. (emphasis

supplied).

The ‘‘power”’ of a jury in a murder case to convict of

a lesser offense or to acquit in disregard of the evidence

was suceinctly epitomized, almost a century ago, in McMeen

». Commonwealth, 114 Pa. 300, 9 A. 878 (1886), as follows:

“It is true the jury have the power even in cases of

murder by poison to convict of a lesser grade of crime.

So they have the power in such cases to acquit alto-

6. See, too, Commonwealth v. Dennis, 433 Pa. 525, 252 A.2d 671 (1969);

Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966) ; Commonwealth

y. Nelson, 396 Pa. 359, 152 A.2d 913 (1959); Commonwealth v. Steele, 362

Pa. 427, 66 A.2d 825 (1949).

ete wre eee?

gether in the face of the clearest evidence.’’ 114 Pa.

at 305-06. (emphasis supplied).

Coming now to the majority’s point that the Four-

teenth Amendment is violated when a request for a volun-

tary manslaughter instruction is denied on the ground that

it lacks evidentiary basis, because Pennsylvania judges

have at times given the instruction in the absence of evi-

dence calling for such instruction:

The sum of the majority’s position is that while a

murder trial judge does not err when he denies a voluntary

manslaughter instruction for lack of evidentiary basis, the

circumstance that judges have at times given the instruc-

tion in the absence of evidentiary basis, demonstrates that

‘*there are no ‘legal standards that courts must enforce’ in

giving or not giving the manslaughter charge in a Pennsyl-

vania murder indictment,”’ and consequently the refusal of

the instruction must be held to be a violation of due process

under ‘*the powerful rationale’’ of Giaccio v. Pennsylvania,

382 U.S. 399 (1966) (emphasis supplied).

I disagree with the majority's stated position for these

reasons:

First, we are here concerned with a felony-murder—a

homicide committed in the perpetration of a robbery,’ and

the Supreme Court of Pennsylvania, a half-century ago,

announced the ‘‘legal standard’’ that in the commission of

such a homicide evidence of existence of passion and provo-

cation—critical ingredients of voluntary manslaughter—is

of no relevance. Commonwealth v. Maleskie, 278 Pa. 387,

123 A.2d 310 (1924). °

Second, and independently so, a defendant in a murder

trial, felony or otherwise, is not denied due process when

7. The Pennsylvania Act of June 24, 1939, P.L. 872, §701, as amended

December 1, 1959, P.L. 1621, §1, 18 P.S. 4701, in effect at the time of

Matthews’ trial, provided inv relevant part:

“All murder which shall be perpetrated by means of poison . . . or

which shall be committed in the perpetration of, or attempting to perpetrate

any arson, rape, robbery. burglary, or kidnapping, shall be mur in the

first degree.” (emphasis supplied).

LOLS CM VOR LEO EL AONEL SELL AGED I OL LEA LI. PO PLIES OMY PE OIL A COOLIO FLOOD LIE MALS IRI F! POEM. ———————

he is correctly refused a voluntary manslaughter instruc-

tion for lack of evideutiary basis simply because in some

instances judges have incorrectly given the instruction in

the absence of evidentiary basis. Otherwise stated, a mur-

der trial defendant is not deprived of due process when he

is refused an instruction to which he is not entitled by law

just beeause a similarly situated defendant has been incor-

rectly accorded an instruction to which he is not entitled

by law.

Third. Giaccio v. Pennsylvania, supra, is inapposite on

its facts and does not point to the result reached by the

majority nor afford it an iota of support.

Elaboration of my foregoing views must be prefaced

by these observations:

The majority’s denial of due process holding, insofar

as it is premised on its ‘‘no legal standards’’ theory, echoes

and adopts the view of Mr. Justice Pomeroy in his dissent

to the affirmance of Matthews’ conviction by the Pennsy]-

vania Supreme Court, and in his subsequent dissent to the

affirmance of the defendant’s murder conviction in Com-

monwealth v. Davis, 449 Pa. 468, 479-80 (1972).*

It must immediately be noted that an application for

certiorari was denied in the Davis ease, sub nom. Davis v.

Commonwealth, 414 U.S. 836 (1973). The application, in

its ‘*Reasons for Granting the Writ,’’ urged almost ver-

batim the reasoning of Justice Pomeroy’s dissent in Davis

(and Matthews) to which the majority here subscribes.” It

also invoked Rochin v. California, 342 U.S. 165 (1952) and

Giaccio v. Pennsylvania, supra, here relied on by the major-

ity. Moreove;, it cited the subseription of the district court

in the instant case to the Pomeroy position.

It cannot be gainsaid that while the denial of certiorari

in Commonwealth v. Davis, supra, is not here of dispositive

dimension it is nevertheless of illuminating significance.

| 8. 297 A.2d 817. 819.

9. See appendix to this dissent.

— Ne Oe Ie aes

What has been said brings me to a seriatim discussion |

of my earlier stated three reasons for my disagreement

with the ‘‘no legal standards that courts must enforce’’

phase of the majority’s denial of due process holding.

The first of these reasons is that we are here concerned

with a felony-murder—a homicide committed in the perpe-

tration of a robbery, and the Pennsylvania Supreme Court,

a half century ago, did announce the ‘‘legal standard’’ that

in the commission of such a homicide evidence of passion

and provocation—the ingredients of voluntary man-

slaughter—is of no relevance. Commonwealth v. Meleskie,

supra.

In Meleskie, the defendant killed a woman he was at-

tempting to rape. He was tried and convicted of felony

murder in the first degree after the trial judge instructed

the jury that there was no evidence of manslaughter in the

ease. He contended on his appeal that the trial judge erred

in his instruction in light of the testimony that after the

defendant has thrown the murder victim to the floor in his

rape attempt ‘‘‘she hit him in the face . . . she bit his

finger, and then he got mad and . . . shot [her] two times

and shot himself once.’ ’’

The Pennsylvania Supreme Court rejected the defend-

ant’s contention and affirmed his conviction.

In doing so it said at pages 386 and 387:

Barbarous indeed would be a law permitting the plea

of provocation and hot blood to a man who, when at-

tempting to rape, flies into a frenzy and kills his victim

because she forcibly defends herself against his crimi-

nal purposes; but no such rule exists in our criminal

jurisprudence. .. . This grave offense would not be

mitigated because, at the time of the killing, defend-

ant’s wrath was kindled by the forcible endeavors of

his victim to protect herself, and, under the circum-

stances, the trial judge was justified in refusing to

charge upon the law of manslaughter: Com. v. Spar-

dute, 278 Pa. 37.”

MI Nee a Tee ES

Meleskie was cited and followed in 1972 in Common-

wealth v. Davis, supra. There the defendant was found

guilty of murder in the first degree in the killing of a nine-

year old girl in an attempt to commit rape or sodomy, after

the trial judge had refused to give a voluntary man-

slaughter instruction and instead instructed the jury that

it could not consider manslaughter.

In doing so the trial judge told the jury:

‘‘Normally, when the charge is murder, the jury

may also consider the charge of voluntary man-

slaughter. However, I instruct you as a matter of law

in this case that manslaughter could not be considered.

It would not be, under the facts in this case, an appro-

priate verdict. So, therefore, 1 instruct you to confine

your consideration to the charge of murder in the first

degree, or the charge of murder in the second degree,

or not guilty. You have three possibilities.”’ 449 Pa.

at 473. (emphasis supplied).

The defendant in Davis contended on his appeal that

the trial judge erred in his binding instructions to the jury

that ‘‘manslaughter could not be considered.”’

The Supreme Court, by a four to three vote, rejected

the defendant’s contention and, citing Meleskie, affirmed on

the ground that the defense of manslaughter is unavailable

to a defendant in a felony-murder trial, viz., homicide in

an attempt to commit the felonies of rape or sodomy.

In doing so the Court said:

‘‘Althongh the establishment of objective stand-

ards for application in all cases must await the further

development of our case law, we believe that the instant

case presents an excellent example of that type of case

where it is perfectly proper for a trial judge to elim-

inate completely the jury’s consideration of the possi-

bility of a voluntary manslaughter verdict. This is not

a case where the court may be arrogating to itself the

jury’s fact-finding function by telling the jury that it

Fe SERA AAG TS: Fs wv

believes there is no evidence of passion and provocation

such as would reduce a murder to manslaughter. Nor

is this a case where a defendant may be penalized be-

cause he completely denied an intentional killing rather

than claim mitigating circumstances surrounded it.

Instead, it is a case where any evidence of passion or

provocation would be irrelevant. The record clearly

shows that whoever committed this murder did so pur-

suant to an attempt to commit rape or sodomy on the

victim. Since rape is one of the enumerated felonies, a

homicide committed in the perpetration of this crime is

a first degree murder. Act of June 24, 1939, P.L. 872,

§ 701, as amended December 1, 1959, P.L. 1621, ¢1, 18

P.S. § 4701. The malice necessary to make a homicide

murder is implied from the presence of the intent to

commit the felony. The presence of passion or prov-

vocation cannot negate this malice. The fact that, at the

fime the killing was committed, the rapist may have

_ been in a state of passion, perhaps out of rage at his

rictim’s resistance or fear that his felony would be

discovered, would make no difference. If he had the

culpability to commit the rape, then, when he killed in

the furtherance of that felony, he is deemed to have

killed with malice. See Commonwealth v. Meleskiec,

278 Pa. 383, 123 A. 310 (1924).’’ 449 Pa. at 475.

(emphasis supplied).

The majority has failed to take into account that we

are here concerned with a felony-murder and sequentially

overlooked the existence of the settled Pennsylvania **legal

standard’’ pertaining to the non-availability of a voluntary

manslaughter defense in a felony-murder trial.

Standing alone, and independently so, a defendant in

au murder trial, felony or otherwise, is not denied due

process when he is refused a voluntary manslaughter in-

struction to which he is not entitled under the evidence

simply because defendants in other murder trials have been

accorded a voluntary manslaughter instruction in the ab-

sence of any evidentiary bagis for such an instruction.

The Pennsylvania courts, in murder cases aside from

those within the felony-murder category, have consistently

held that both ‘* ‘sufficient cause of provocation and a state

of rage or passion, without time to cool’ ’? must be estab-

lished by the evidence in order to sustain a voluntary

manslaughter charge.”

As earlier stated, the Supreme Court of Pennsylvania

has repeatedly specifically held that the failure or refusal

to charge on voluntary manslaughter in non-felony murder

cases is not error where there is no evidence to support a

voluntary manslaughter verdict."

The majority holds that albeit the Pennsylvania

Supreme Court has consistently ruled that failure or re-

fusal to charge on voluntary manslaughter in the absence of

evidentiary basis, it has not ‘unequivocally held that . . -

it would be error for a trial judge to charge on voluntary

manslaughter where there was no evidence of passion or

provocation,’’ and it therefore follows that ‘‘the final de-

cision on whether to charge [is] within the discretion of the

trial judge.’’

‘The ready answer to the majority's reasoning is that

errors favorable to a defendant are considered harmless

and are therefore disregarded on appeal. Grunewald v.

United States, 353 U.S. 391, 396-97 n.9 (1957).

10. Commonwealth v. Walters, 431_ Pa. 74, 82, 244 A2d 757, 762 (1968),

quoting irom Commonwealth v. Paese, 200 Pa. 371, 373, 69 A. 891, 892 (1908).

11. See note 3.

12. In United States v. Stromberg, 268 F.2d 256 (2d Cir.) cert. denied,

361 US. 863 (1959), the Court said with reference to a charge in a criminal

case “overly favorable to the defendants” :

“The error, since in favor of the defendants, is of course not ground for

reversal.” 268 F.2d at 266.

In Ebeling v. United States, 248 F.2d 429 (8th Cir.), cert. denied sub nom.

United States v. Emerling, 355 U.S. 907 (1957), the court said with reference

to a favorable instructien improperly accorded to the appellants:

“Error favorable to an appellant does not constitute a basis for reversal

in a criminal case.” 248 F.2d at 438.

The majority has not cited any case in any jurisdiction

in which an appellate court has reversed a conviction be-

cause the defendant was given a favorable instruction not

justified by the evidence. Nor has the majority cited any

holding by an appellate court that due process is violated

where defendant is properly denied an instruction for lack

of evidentiary basis just because another defendant has

been accorded a favorable instruction to which he was not

entitled under the evidence. The district court’s holding in

the instant case is without precedent at either the trial or

appellate level.

Coming now to my view that Giaccio v. Pennsylvania,

supra, is inapposite on its facts and does not point to the

result reached by the majority nor afford it any support:

In Giaccio, a jury acquitted the appellant on a mis-

demeanor indictment but assessed ‘‘costs’’ against him

under a Pennsylvania statute permitting jurors to “deter-

mine by their verdict, whether the [acquitted] defendant

shall pay the costs,’’ and providing for his commitment to

jail in default of payment or security. The jury had been

instructed that it could impose the costs on appellant even

though it acquitted him if it found him guilty of ‘‘some

misconduct.”’

The Court held that the statute was unconstituticnal

under the due process clause ‘‘ because of vagueness and the

absence of any standards sufficient to enable defendants to

protect themselves against arbitrary and discriminatory

impositions of costs.’’ In so holding the Court said:

‘‘This 1860 Pennsylvania Act contains no standards at

all, nor does it place any conditions of any kind upon

the jury’s power to impose costs upon a defendant who

has been found by the jury to be not guilty of a crime

charged against him.’’ 382 U.S. at 402-03. (emphasis

_ supplied).

Of imperative significance here is the fact that in hold-

ing the Pennsylvania Act violative of due process the Court

said in a footnote:

-_-—— -+j, -—--—

ee ae ee ee Se Ee ee Se ee \ ”.

‘‘In so holding we intend to cast no doubt what-

soever on the constitutionality of the settled practice

of many States to leave to juries finding defendants

guilty of a crime the power to fix punishment within

legally prescribed limits.’’ 382 U.S. at 405 n.8.

The foregoing note was cited and quoted in McGautha

v. California, 402 U.S. 183, 207 n.18 (1971), where the court

cautioned against federal ex cathedra imposition of stand-

ards in the conduct of state murder trials.

In so doing it said:

“Our function is not to impose on the States, e2

cathedra, what might seem to us a better system for

dealing with capital cases. Rather it is to decide

whether the Federal Constitution progcribes the pres-

ent procedures of these two States in such cases.’ 402

US. at 195-96. 7 iacarnciee Came. i

“(T]he Federal Constitution, which marks the limits

of our authority in these cases, does not guarantee

trial procedures that are the best of all worlds, or that

accord with the most enlightened ideas of students of

the infant science of criminology, or even those that

measure up to the individual predilections of members

of this Court.’’ 402 U.S. at 221. (emphasis supplied).

The late Mr. Justice Black, in his concurring ‘‘Separate

Opinion,’’ pinpointed the ex cathedra caution of the

majority in this graphic statement:

““The Constitution grants this Court no power to re-

rerse convictions because of our personal beliefs that

state criminal procedures are ‘unfair,’ ‘arbitrary,’

‘capricious,’ ‘unreasonable,’ or ‘shocking to our con-

science.’ {citing cases]. Our responsibility is rather

to determine whether petitioners have been\ denied

rights expressly or impliedly guaraniced by the Fed-

ROSIE GEE OLE 5E OL LRMOLECS BIO SO ELAS

IID QO RG PIED Kg

. 2 RRs CAE OTe

- ry

eral Constitution as written.’’ 402 U.S. at 225-26.

(emphasis supplied).

In Spencer v. Texas, 385 U.S. 554 (1967), the Court

held that neither the specific provisions of the Constitutio’.

nor cases decided under the due process clause established

the Supreme Court as the rule-making organ for the pro-

mulgation of state rules of criminal procedure.

In conclusion, for each of the reasons stated in this dis-

sent, I would reverse the Order of the District Court which

granted Matthews’ petition for the habeas writ, and remand

with directions to deny the petition.

iebiadinuseea __ APPENDIX, .. \Savdteigeioecuninioeeia

The ‘‘ Reasons for Granting the Writ,’’ set forth in the

petition for a writ of certiorari in Commonwealth v. Davis;

denied sub nom. Davis v. Commonwealth, 414 U.S. 836

(1973), parallels the reasoning of the majority and Judge

Adams in his concurring opinion, as evidenced by the fol-

lowing statements in the Davis ‘‘Reasons’’:

‘*Highlighting the arbitrary and unequal applica-

tion of the law to defendants charged with the crime of

murder is the fact that some trial courts in Pennsyl-

vania always give a charge on voluntary manslaughter,

whether requested or not, and regardless of whether a

factual basis for such a finding exists while other trial

courts net 2 give a charge on voluntary manslaughter,

even when so requested, unless a factual basis for such

a charge exists. See dissenting opinion in Common-

wealth v. Kenney, 449 Pa. 562 (1972).

‘*Because the choice whether or not to charge is

discretionary with the trial judge, and he has been fur-

1. Commonwealth v. Davis, 449 Pa. 468, 297 A.2d 817 (1972).

POET DN ABE) LD 8) FOLIA LC LS OID EE LIE LISLE SE IE OGG BOO NOB IRS GIG LG OO ef BLN POP

nished with no objective standards for his guidance,

the existing state of Pennsylvania law offends due

process ; and because the practice denies the same treat-

ment to similarly situated defendants who happen to

stand before differently disposed judges, it violates the

equal protection of the laws. In allowing the trial

judge complete diserction in deciding whether or not to

submit voluntary manslaughter to the jury asa possible

verdict in a case where there is no evidence of passion

or provocation with absolutely no standards to guide

him and no safeguards to militate against the exercise

of whim or caprice, there is sanctioned by the court a

procedure which violates due process in denying to

those subject to it the fundamental fairness required iit

a system of ordered liberty. Rochin v. California,

supra.’ ...

cited Giaccio v. Pennsylvania, 382 U.S. 399 (1966).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

(A.O.—U. S. Courts, International Printing Co., Phila., Pa.)

ee ee ee ed me

APPENDIX C

OrverR oF THE Districr Court, INCORPORATING THE

Report AND RECOMMENDATION OF THE Unirep States

MAGISTRATE

ORDER

DAVIS, J.

Now, this 3rd day of April, 1973, after careful and

independent consideration of relator’s petition for a

writ of habeas corpus and after review of the

Report and Recommendation of the United States

Magistrate, IT IS ORDERED that:

1. The Report and Recommendation is approved

and adopted.

2. The petition for a writ of habeas corpus is

GRANTED under the following conditions:

A. The execution of the writ will be STAYED for

a period of sixty (60) days from the date of this

Order to allow the Commonwealth of Pennsylvania

to appeal as provided by law, or to relist the Bill of

Indictment for a speedy trial.

B. Upon the expiration of the sixty (60) day

time period, if the Commonwealth has not appealed

or relisted the bill, the relator may petition this

Court for his release and the execution of the writ.

/s/ Joun Morcan Davis, J.

REPORT

Epwin E. NayrHons

U.S. MaGistrate

Mareh 5, 1973

Relator, William Matthews, convicted’ after a jury

trial of murder in the first degree, with the penalty

1 Commonwealth v. William Matthews, Court of Common Pleas,

Trial Division, Criminal Section, County of Philadelphia, April

Sessions 1968, No. 888, Murder.

OE CL BE LEBEN AY NIE LEIA ILA DS LA LOE ELEGANS LO EIEN CENTENNIAL OO Hs

I in Sw oe dat

fixed at life imprisonment, has filed a petition for a

writ of habeas corpus. The conviction and sentence

were affirmed? by the Supreme Court of Pennsy!-

vania on December 29, 1971. Commonwealth vy. Mat-

thews, 446 Pa. 65 (1971).

In his present federal petition, relator raises the

following grounds for habeas relief:

(a) that illegally seized evidence was admitted

into evidence;

(b) that an involuntary confession made by relator

was allowed into evidence at the trial;

imprisonment he was denied his right to an impartial

jury when prospective jurors were challenged for

cause by reason of their conscientious scruples against

capital punishment;

(d) that the trial court favored the Commonwealth

in its rulings on defense objections and requests;

(e) and, that the trial judge violated relator’s con-

stitutional right to due process and equal protection

under the Fourteenth Amendment in refusing a spe-

cific request to instruct the jury on voluntary man-

slaughter, and, in refusing to charge the jury that

voluntary manslaughter was one possible verdict that

could be rendered.

Relator through direct appeal has sufficiently ex-

hausted State procedures on the issues raised herein

so as to merit our consideration of his petition. After

a thorough consideration of the entire State record

as it relates to the issues here raised, we find such

to be factually complete and sufficient so that no fur-

ther evidentiary hearing in this Court is necessary

or warranted. Townsend v. Sain, 372 U.S. 293 (1963).

2 Two separate dissenting opinions were filed. They will be dis-

cussed in detail at a later portion of this Report and Recommendation.

AAA et OR PT AT TI AE EG ed ON it me

The charge brought against the relator resulted

from the stabbing death of one Randolph Butts, who

died on February 23, 1968, as the result of the knife

wounds sustained when he was assaulted and robbed

after leaving an apartment located at 3856 Haver-

ford Avent, Philadelphia.

In the course of their investigation, the detectives

apprehended one, James Williams, relator’s nephew,

in connection with the rolbery murder. Williams ad-

mitted having participated in the commission of the

robbery, and accused relator and one, James Jackson

of also having participated, and informed the police

that relator had hidden the knife used in the stab-

bing at the apartment. Based on this information,

an investigating officer caused a search warrant to

issue for the apartment (where the relator was visit-

ing his sister at the time). The search revealed a

silver, eight inch knife. After taking the relator into

custody and questioning him, relator made an incul-

patory statement which was used against him at his

trial. The warrant’ described the property sought

as “one pocketknife” and bloody clothing worn by

relator on Friday, February 23, 1968.

I. Probable cause for issuance of search warrant.

Before commencing an inquiry into the sufficiency

of the affidavit, it is important to note the presump-

tions with which reviewing courts are directed to

approach such an examination:

+ The following affidavit appeared on the face of the warrant in

question: “On Fri. 2-23-68 at about 11:00 P.M., Randolph Butts,

40-N., 4938 Green St. was taken from the highway 3856 Haverford

Ave. to the Presbyterian Hosp. and pronounced dead from stab

wounds of the back. Investigation disclosed that James Williams

18-N., res. 3856 Haverford Avenue took part in the robbery of

Randolph Butts. James Williams stated that William Matthews 18-N.

3856 Haverford and James Jackson 19-N., 4422 Brown St. had

stabbed Randolph Butts and bid the knife in the 3rd floor apart-

ment (rear) of 3856 Haverford Avcaue.”

“. . that only the probability, and not a prima

facie showing, of criminal activity is the stand-

ard of probable cause, Beck v. Ohio, 379 US. 89,

96 (1964); that affidavits of probable cause are

tested by much less rigorous standards than

those governing the admissibility of evidence at

trial, McCray v. Illinois, 386 U.S. 300, 311 (1967) ;

that in judging probable cause issuing magis-

trates are not to be confined by niggardly limita-

tions or by restrictions on the use of their com-

mon sense, United States v. Ventresca, 380 U.S.

102, 108 (1965); and that their determination of

probable cause should be paid great deference

by reviewing courts, Jones v. L Tnited States, 362

U.S. 257, 270-271 (1960).* [Emphasis added. ]

In Aguilar v. Texas, 378 U.S. 108 (1964), and

Spinelli v. United States, supra, the Supreme Court

developed the following two-pronged tests for ascer-

taining the validity of a warrant:

“First, the application failed to set forth any

of the ‘underlying circumstances’ necessary to

enable the magistrate independently to judge the

validity of the informant’s conclusions ;

Second, the affiant-oflicers did not attempt to

support their claim that their informant was

‘credible’ or his information reliable’.” 393 U.S.

413.

Relator contends, as he did on his appeal to the

Supreme Court of Pennsylvania, that the second facet

of the aforementioned tests was not met in that the

requesting officer did not attempt to support his

claim that the informant was credible or his informa-

tion reliable. In rejecting this argument, Justice

Eagen said at 70-72:

4 Spinelli v. United States, 393 U.S. 410, 419 (1969).

ES RET LE EIDE IE IO IIE REELS LEE GEE

“The case law is clear that when a person is

an admitted participant in a crime, and the

police attempt to secure a warrant upon the

information received from him, the second as-

pect of the Supreme Court's test is met, since

the facet that the individual admits participation

in the erime insures his reliability. See generally,

United States v. Viggiano, 433 F.2d 716 (2d Cir.

1970): Louie v. United States, 426 F.2d 1398

(9th Cir. 1970); Gilbert v. United States, 366

F.2d 923 (Sth Cir. 1966); Owens v. Scafati [sie}

F. Supp. 428 (D. Mass. 1967): Commonwealth vy.

Stewart, __ Mass. —, 267 N.E. 2d 213 (1971):

Commonwealth v. Rose, 211 Pa. Superior Ct. 205,

235 A.2d 462 (1967).

... the United States Supreme Court in United

States v. Ventresca, supra, at 108-09, 85 S. Ct.

at 746, stated that the affidavit ‘must be tested and

interpreted by ... [this Court] in a common-

sense and realistic fashion’, and that we ‘should

not invalidate the warrant by interpreting the

affidavit in a hypertechnical, rather than a

common-sense manner’, and that ‘the resolution

of donbtful or marginal cases in this area

should be largely determined by the preference

to be aceorded to warrants’. Based on this

guideline, it is our view that a common-sense

reading of the affidavit involved is sufficient to

establish Williams is reliable since he was a

‘known’ participant in the crime, and the magis-

trate could properly presume Williams knew

anything he said would or could be used to

implicate him in the crime, and he would not be

inclined to give false information about ‘1imself,

or his uncle, the appellant.” [Emphasis added. ]

In addition, Williams’ recitation of the manner in

which the crime was committed was corroborated by

the police investigation, since it was clear that a

murder had been committed and it ceeurred as a

result of stab wounds, as the informer stated, leading

to the conclusion he had first-hand information. As

stated in Costello v. United States, 324 F.2d 260, 262

(9th Cir. 1963), there exists at least “two means by

which the credibility of an informant may be estab-

lished. One is by corroborating external circumstances

occurring in the course of the very case that is at

issue... The other is the fact that on prior oceasions

in other cases the informant has given information

which turned out to be reliable.” [Emphasis added.]

Relator’s contention that the weapons should have

been suppressed because the Detective deseribed the

knife as a “penknife”; whereas he actually confiscated

a “silver kitchen knife” is likewise without merit.

This is heeause the search in this case was not

“exploratory”, but rather one directed in good faith

towards the object specified in the warrant. As the

Supreme Court said on this point at 73:

“To rule otherwise, merely because the warrant

specified a ‘pocket knife’ whereas a ‘kitchen knife’

was seized would be hypertechnical and contrary

to the common-sense approach mandated in

United States v. Ventresca, supra . . . More-

over, in this connection, we note that several

courts have ruled that where the items to be

seized are as precisely identified as the nature

of the activity permits and an exact description

is virtually impossible, the searching officer is

only required to deseribe the general class of the

item he is seeking . . .” (Citations omitted.)

{Emphasis added. }

II. The evidentiary use of relator’s confession.

Prior to the trial, the presiding judge held an

evidentiary hearing on relator’s petition to suppress

his confession, and after a full hearing concluding, in

the first instance, that the confession was a voluntary

one. While the relator testified that the confession was

coerced through threats of physical violence and that

his request for counsel was ignored, this testimony

was specifically contradicted by the police officer to

whom the confession was given. The officer stated that

no questioning occurred until after the relator had

been fully informed of his rights as mandated by

Miranda v. Arizona, 384 U.S. 436 (1966), and indicated

he understood his rights and was willing to make a

statement without the assistance of legal counsel. We

note additionally that the trial court charged the

jury that a confession is not admissible unless it is

voluntary, and, after further defining what constituted

a voluntary confession, left to the jury the final and

ultimate determination of whether this confession was,

in fact, a voluntary one. That relator was only

eighteen years of age at the time of the interrogation

does not render the confession per se invalid.

In determing whether any individual, be he juve-

nile, or adult, has ‘ntelligently waived his constitu-

tional rights, it is necessary to examine the totality

of the circumstanees. Each case is to be separately

considered from the subjective viewpoint of the in-

dividual who is being questioned. United States of

America ex rel. Brown vy. Rundle, 450 F.2d 517, 519-

520 (3rd Cir. 1971); United States of America ex rel.

Walker v. Maroney, 313 F.Supp 237, 239 (E.D. Pa.

1970), aff'd 444 F.2d 47 (3rd Cir. 1971).

While we are mindful, and indeed would emphasize,

that the Commonwealth bears a heavy burden

establishing that an accused has intelligently waived

his constitutional rights, it is our conclusion that this

burden has been met in the present case and that the

statements were properly admitted. Prior to his giving

the statement, relator was twice given the requisite

Miranda warnings and on each occasion indicated his

willingness to give a statement without the presence of

counsel. The statement was taken and the seven type

written pages were then read back to him and signed.

At the time he gave his statement, relator was

eighteen years of age and had been employed for two

years. There is nothing to indicate that relator did

not understand his rights and the record supports the

observation and conclusion of the trial judge and the

court en bane. We therefore conclude in the cireum-

stances of this case that the waiver was voluntary.

III. The challenging of jurors by the commonwealth.

Relator again contends, as he did before the State

Courts, that the selection of jurors in this case con-

stituted a deprivation of his due process rights. In

this connection he argues that a jury ghould be com-

posed of a cross-section of the community and, there-

fore, should consist not only of those prospective

jurors who have no conscientious scruples against the

imposition of the death penalty, but those who have such

moral or conscientious scruples. In Bumper v. North

Carolina, 391 U.S. 543 (1968), a companion case to [sic]

Witeherspoon y. Illinois, 391 U.S. 510 (1968), the

United States Supreme Court held that where a de-

fendant was sentenced to life imprisonment, as here,

he was not denied his constitutional right to an

impartial jury merely because the prosecution was

permitted to challenge prosepective jurors who stated

they were opposed to capital punishment or had

conscientious scruples against imposing the death pen-

alty. This same contention was also considered and

rejected in Commonwealth v. Speller, 445 Pa. 32, 282

A.2d 26 (1971). See also Commonwealth v. Roach,

444 Pa. 368, 282 A.2d 382 (1971). Therefore, there is

no merit to this contention and it must be rejected.

IV. The trial court’s impartiality.

Relator alleges that the trial judge demonstrated

bias against the defendant because it assisted the

Assistant District Attorney in the presentation of his

case at the suppression hearing by directing the pros-

ecutor to reeall certain witnesses. The Court noted

that a witness was to be recalled because relator was

then contesting the validity of the arrest though the

issue had not been raised in the relator’s suppression

petition. (N.T. 148-149), It was therefore, necessary

to obtain testimony on this point, which had not been

the subject of the witnesses’ previous testimony, In

any event, “errors committed during the trial of a

criminal ease in a state court are not subject to re-

view in a habeas corpus proceeding in a federal court

unless it is shown that the errors were so conspicu-

vusly prejudicial as to deprive defendant of a fair

trial.” United States ex rel. Brown v. Russell, 455

2d 464, 465 (Sed Cir. 1972): United States of Amer-

ica ec rel. Cannon vy. Moroney, 373 F.2d 908, 110 (3rd

Cir. 1967). Such a showing has not been made on the

basis of this reeord as to this allegation. { Mmphasis

added. ]

V. Refusal of the trial court to submit the crime

of voluntary manslaughter to the jury for its con-

sideration.

In dealing with this issue the Supreme Court of

Pennsylvania stated at 74:

“Appellant next asserts the trial court committed

error in refusing a specific request to instruet

the jury on voluntary manslaughter, and also in

failing to submit to the jury such a finding as

a possible verdict. Since there was no evidence

which pointed in the slightest’ degree to the of-

fense of manslaughter, the court’s action did

not constitute error. Commonwealth v. LaRue.

381 Pa. 113. 112 A.2d 362 (1955); and Comnron-

wealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).”

it is on this particular point that the two dissent-

ing opinions mentioned previously were filed. Beeause

of the constitutional issues raised herein these dis-

senting opinions cannot go unmentioned. Mr. Justice

Roberts in discussing this aspect said at 78 of 446 Pa.:

~~. it is of course unarguable that voluntary

manslaughter is a lesser ineluded offense in an

indietment for murder. The jury should be so

instructed. Furthermore, the jury should be ad-

vised that a verdiet of voluntary manslauchter

is one of the verdiets returnable under a murder

indietment. The failure to do so obviously creates

many potentials for incomplete, unfair, and un-

equal considerations in the deliberations of the

jury and the verdict and treatment accorded

the accused.”

And Mr. Justice Pomeroy in a more searching

analysis likewise wrote at SO-S1:

“Imposed upon this conceptual framework is a

second rule which the majority here reaflirmes.

That rule gives a trial judge complete disere-

tion in deeiding whether or not to submit volum-

tary manslaughter to the jury as a possible

verdict in a ease where there is no evidence of

passion or provocation. See e.g., Commonws alth

vy. LaRue, 381 Pa. 113, 112 A.2d 362 (1955);

Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827

(1938). The reason for this rule is said to be

that a charge on a point or issue which is un-

supported by any evidence *, . . is likely to con-

fuse the jury acd obstruct justice’. Common-

wealth v. Pavillard, 421 Pa. 571, 220 A.2d S807

(1966).

OE EB OD “TILT mA eens

sei ECO LP AREY LE LILLIE GALLE LR EWE AAED see Sac Vin ae AP” a a

id “

Thus, while a jury has,the power to return a

verdict of guilty of the lesser included offense of

voluntary manslaughter in every case tried pur-

suant to a murder indictment, this power may be

effectively negated by the decision of a trial

judge to refuse to charge the jury on this point.

In making this decision, the judge has no stand-

ards to guide him and there are no safeguards

which would militate against the exercise of whim

or caprice.

In my view, the due process and equal protection

clauses of the Fourteenth Amendment require the

abandonment of the procedure now again sanc-

tioned by the court. Due process is violated where

a state procedure denies to those subject to it the

fundamental fairness required in a system of

ordered liberty. Rochin v. California, 342 U.S.

165, 169, 96 L.Ed. 183 (1952). The procedure here,

grounded as it is upon the exercise of absolute

diseretion by the trial judge, without the benefit

of any objective standards to guide him, is pat-

ently arbitrary and unfair.

Likewise, the equal protection clause is offended

where a state cannot show a rational basis for

discrimination between persons or groups of per-

sons. Cf. Reed v. Reed, 404 U.S. 71, 30 L.Ed. 225

(1971); Dandridge v. Williams, 397 U.S. 471, 25

L.Ed. 2d 491 (1970): Shapiro v. Thompson, 394

U.S. 618, 22 L.Ed. 2d 600 (1969).” [Emphasis

added. ]

As revealed in Commonwealth v. Davis, 449 Pa. 468

(1972), this perplexing problem has still not been

laid to rest by the Pennsylvania Supreme Court. In

Davis, the court was evenly divided on the identical

issue thereby affirming the judgment of sentence. In

his dissent, Mr. Justice Pomeroy (joined by Justice

PAS DOR LID, Dig POLITE LORIE RAO IEEE III CE LEA GILSON ELIT LM ELLETLI EB OLA LILLE LA VC ABS - 3

pCO ak

Roberts and Justice Manderino) once again pointed

up the dilemma of the Pennsylvania Trial Courts by

saying at page 480:

“The opinion in support of affirmance stands for

the proposition that in a felony-murder case, ‘it

is perfectly proper for a trial judge to eliminate

completely the jury’s consideration of the pos-

sibility of a voluntary manslaughter verdict’, and

that. accordingly, the judge in this case did not

err in charging the jury that ‘as a matter of law

. manslaughter could not be considered.’ The

opinion does not state that juries must be so in-

structed in all felony-murder cases, nor that it

would be error for the charge to be silent on the

question of manslaughter, nor that it would be

error for a judge to charge that the jury could,

although under the evidence it should not, return

a verdict of voluntary manslaughter. Thus the

trial courts are still left with uninstructed dis-

cretion as to when they will or will not advert in

their charges to the manslaughter possibility, and

in what terms.” [Emphasis added. ]

To gain further insight into the cause of this unique

problem a review of the Pennsylvania law may prove

helpful. The law in Pennsylvania has uniformly held

that where there is absolutely no evidence of the eie-

ments of manslaughter it is not error for the trial

judge to refuse to charge on this point or submit

manslaughter as a possible verdict. Commonwealth v.

Flar. 331 Pa. 145 (1938); € ‘ommonwealth v. LaRue,

381 Pa. 113 (1955): Commonwealth v. Dews, 429 Pa.

555, 558. However, the law is equally clear that in any

murder prosecution the jury may always return, and

the court must accept a verdict of voluntary man-

slaughter. Commonwealth v. Hill, 444 Pa. 323 (1971);

Commonwealth v. Hoffman, 439 Pa. 348 (1970): Com-

EOL, GOTT GT OS CEA BOON GOS LOL ELD LEE EDL

ae LORE DIL LLLOLOD a AO GG

ee oe

monwealth v. Harry, 487 Pa. 532 (1970); Common-

wealth v. Dennis, 433 Pa. 525 (1969): Commonwealth

v. Cooney, 431 Pa. 153 (1968): Cemmonwealth v.

Pavillard, 421 Pa. 571 (1966): Commonwealth v.

Frazier, 420 Pa. 209 (1966); Commonwealth vy.

Arcurso, 283 Pa. 84 (1925): Commonwealth v. Galle,

7 Serg. R. 423 (1821).

Yet the Supreme Court of Pennsylvania has pro-

nounced the view that when there is no factual basis

to support a finding of voluntary manslaughter, the

trial court may in its discretion refuse to charge on

voluntary manslaughter, even when so requested, thus

effectively keeping the jury unaware of its power. In

xo holding, the Court completely ignores the uniformly

applied legal principle that a jury may always, in any

murder prosecution return a verdict of voluntary

manslaughter. Instead the Court has permitted the

trial court’s decision on whether to charge on volun-

tary manslaughter to nothing more than ed hoc

notion. In Rochin v. California, 342 U.S. 165, 172

(1950), Mr. Justice Frankfurter said:

“In each case ‘due process of law’ requires an

evaluation based on a disinterested inquiry pur-

sued in the spirit of science and a balanced order

of facts exactly and fairly stated, on the detached

consideration ef conflicting claims ... on a

judgment not ad hoc and episodic wut duly mind-

ful of reeonciling the needs both of continuity

and of change in a progressive society.” [Em-

phasis added. |

Ix it not reasonable to ask: how is a jury able to

exercise its power when it is never advised that it

has such power? The rule being followed in Penn-

svlvania has undoubtedly led to an arbitrary justice

where there is a murder indictment without facts

showing manslaughter, since trial judges have eapri-

Aye iy’ “o%

PR PR AI SO RMI a ia ED PE 7 ww

BA Mata Ra Le Le ial CE

‘

ciously chosen to charge the doctrine or not. Compare

Commonwealth v. Yeager, 329 Pa. 81, 196 A. 827

(1938) with Commonwealth v. Robinson, 205 Pa. 302,

157 A. 689 (1931). In the latter case the Pennsylvania

Supreme Court found no error in a charge which told

the jury (1) the elements of manslaughter, (2) that

there wax no evidence of the crime, (3) that they still

had it in their power to find manslaughter.

If, in fact, the purport of the decision by the

Supreme Court of Pennsylvania majority is to bar

the trial judge in all felony-murder cases from charg-

ing on voluntary manslaughter, the due process

objection would be obviated with respect to this

category (i.e. felony-murder) of murder cases by

supplying a clear-cut mandate; the decision would

not, however, eliminate the unconstitutional diserim-

ination between different defendants charged with

murder of the felony-murder type on the one hand

and common law murder on the other.

Particularly relevant to the present case is the

decision in Giaccio v. Pennsylvania, 382 U.S. 399

(1966). That case involved a statute whereby Penn-

sylvania attempted to mitigate the harshness of its

common law rule requiring criminal defendants to

pay the costs of prosecution in all cases by commit-

ting the matter to the diserction of the jury in cases

where the defendant was found not guilty Mr.

Justice Black speaking for the majority aptly stated

at 402-404:

“We agree with the trial court . . . that the 1860

Act is invalid under the Due Process Clause be-

cause of vagueness and the absence of any stand-

ards sufficient to enable defendants to protect

themseives against arbitrary and discriminatory

impositions of costs.

. .. It is established that a law fails to meet

the requirements of the Due Process Clause if

it is so vague and standardless that it leaves

the public uncertain as to the conduct it pro-

hibits or leaves judges and jurors free to decide,

without any legally fixed standards, what is

prohibited and what is not in each particular

case. This 1860 Pennsylvania Act contains no

standards at all . . . Certainly one of the basic

purposes of the Due Process Clause has always

been to protect a person against having the

Government impose burdens upon him except in

accordance with the valid laws of the land.

Implicit in this constitutional safeguard is the

premise that the law must be one that carries an

understandable meaning with legal standards

that courts must enforce...

... The State contends that . . . state court in-

terpretations have provided standards and guides

that cure the . . . constitutional deficiencies. We

do not agree ... In this case the trial judge

instructed the jury that t might place the costs

of prosecution on the « »pellant, though found

not guilty of the crime charged, if the jury found

that ‘he has been guilty of some misconduct less

than the offense which is charged but nevertheless

misconduct of some kind as a result of which he

should be required to pay some penalty short

of conviction [and] .. . his misconduct has given

rise to the prosecution.’

It may be possibly be that the trial conrt’s charge

comes nearer to giving a guide to the jury than

those that preceded it, but it still falls short

-of the kind of legal standard due process re-

quires .. . 382 U.S., at 402-404 (emphasis added)

(citations omitted).”

And, in Griffin v. Illinois, 351 U.S. 12, 17 (1956),

the Court said: . 4

PEA Fit rc

Bae oe

“ |. our own constitutional guaranties of due

process and equal protection both eall for pro-

cedures in criminal trials which allow no invid-

ious discriminations between persons and different

groups of persons. Both equal protection and

due process emphasize the central aim of our

entire judicial system-all people charged with

crime must, so far as the law is concerned, stand

on an equity before the bar of justice in every

American court. Chambers v. Florida, 309 U.S.

297, 241. See also Yick Wo v. Hopkins, 118 US.

356, 369.” [Emphasis added. }

The present chilling effect of Pennsylvania law on

this matter is to leave the trial courts with absolutely

no standards’ or guidance on the criminal question of

whether to charge the jury on voluntary manslaughter

when there is no evidence to support such a finding.

Applying the above established principles to the

instant ease, because the choice whether or not to

charge is diseretionary with the trial judge, and he

has been furnished with no objective standards for

his guidance, the challengec practice offends due

process. Because the practice denies the same treat-

ment to similarly situated defendants who happen

to stand before differently disposed judges it violates

equal protection of the law. Baxstrom v. Herold, 383

U.S. 107 (1966); United States ex rel. Schuster v.

Herold, 410 F.2d 1071 (2nd Cir. 1969) cert denied,

395 TS. 847 (1969).

The court is not unmindful that under our system,

the administration of criminal justice is generally

committed to the severa! states; that due process of

5In Commonwealth v. Davis, supra, the Pennsylvania Supreme

Court in affirming the judgment of conviction acknowledged that

“the establishment of objective standards for application in all

cases must await further development of our case law . . .” Id. at

475.

II 4 Ee

VP, FO Sere

law “is not to be turned into a destructive dogma

against the States in the administration of the sys-

tenis of criminal justice.” Rochin v. People of Cali-

fornia, supra; that in the enforeement of their

criminal laws, states have comprehensive rights in

fashioning their own rules. Auapp v. Schweitzer, 357

U.S. 371, rehearing denied 358 U.S. 860 (1958). How-

ever, this Court in reviewing application for habeas

corpus relief too has its responsibility. Regard for

requirements of the Due Process Clause “ineseapably

imposes on this Court an exercise of judgment upon

the whole course of the proceedings [resulting in a

conviction] in order to aseertain whether they offend

the cannons of decency and fairness . . . even to-

wards those charged with the most henious offenses.”

Malinski v. New York, 324 U.S. 401 at 416-417.

For the foregoing reasons, relater’s conviction of

first degree murder was not attended by the funda-

mental fairness required by the Fourteenth Amend-

ment of the Constitution. It cannot stand and the

writ must issue.

Accordingly, we make the following:

RECOMMENDATION

Now, this Sth day of March, 1973, IT IS RESPECT-

FULLY RECOMMENDED that relator’s petition for

a writ of habeas corpus be GRANTED, and that the

execution of the writ be stayed for a period of sixty

(60) days from the date of the order of the Court to

give the Commonwealth an opportunity to appeal as

provided by law, or to relist the Bill of Indictment

for a speedy trial.

/s/ Evwtx E. Naytuonrs

Unsrrep States Macistrate

APPENDIX D

Optision OF THE PENNSYLVANIA SuPREME Court

Commonwealth v. Matthews, Appellant.

Criminal Law—Search and seizure—Suffictency of affidevit—

Probable cause—Credibility of informant—Statement that @ particu-

lar person hed taken part in the felony—S8tatement that such per-

som had averred that defendant hed stabbed victim—Reference to

knife in affidavit and to pocket knife in warrant—Common sense

interpretation of affidavit—Items to be seized ae precisely identi

fied as nature of activity permits.

1. Where it appeared that a search warrant, signed by 2 police

detective, stated that the victim of the homicide in question was

taken from a highway to a hospital and pronounced dead from

stab wounds of the back; that investigation disclosed that one W

took part im the robbery of the deceased; and that W said that de-

fendant had stabbed the victim; it was Held that the warrant satis-

fied the second aspect of the tert set forth in Spinelli v. United

States, 303 U.S. 410.

2 An affidavit for a search warrant must be tested and inter-

preted by the court in a common sense and realistic fashion; the

resolution of doubtful or marginal cases should be largely deter-

mined by the preference to be accorded to warrants. [71]

PL A PRI Oey sg Oe ae : ———————

we”

SLE I 6 ALE TOELD A SR aBhla OB AE at A OIE SER

66 COMMONWEALTH v. MATTHEWS, Appellant.

Syllabus. (446 Pa.

3. Where it appeared that the affidavit stated that the item to

be seized was merely a knife but the warrant limited the descrip-

tion to “one pocket knife”; it was Held that a kitchen knife

seized was properly put in evidence.

4. Where the items to be seized are as precisely identified as

the nature of tbe activity permits and an exact description is

virtually impossible, the searching officer is only reyuired to de-

scribe the general class of the item he is seeking. [73]

Criminal Law—Evidence—Confeseion—Voluntariness.

56. Where a defendant alleges that bis confeasion was coerced

by threats of physical violence and that his request for a lawyer

during the period of police questioning was ignored, the credibility

of his testimony is for the fact-finders below. [74]

Criminal Lew—Murder—Voluntary manslaughter—Charge to

jury—-No evidence pointing to offense of manslaughter.

6. In a prosecution for murder, it is not error for the trial

court to refuse a specific request to instruct the jury ou volun-

tary manslaughter or to submit to the jury such a finding as a

: possible verdict, where there is no evidence which points in any

3 degree to the offense of manslaughter. [74]

eee ee eT

Criminal Law—Practicc—J ury—Selection—Kecusing jurors for

cause because they indicate conscientious scruples against imposti-

tion of death penaliy—Due process—-Equal proicction of the law. .

7. Defendant’s contention, that due process was violated at

the trial by excusing jurors for cause merely because they indi-

cated conscientious scruples against the imposition of the death

penalty, in that this prevented the accused from being tried by a

jury which was @ cross section gf the community, was Held to be

without merit.

8. Defendant’s further argument, that the excusing of jurors

for cause because of conscientious scruples violates the Due Pro-

cess Clause of the Fourteenth Amendment, since a jury has abso-

lute discretion im the fixing of the pevalty and could conceivably

act differently in differect cases, was ikewise Held to de without

merit.

9. Defendant's contention, that there is an eqnal protection

violation inherent in the present jury system, was Held to be

without merit.

Mr. Justice Rosrzyrs filed a dissenting opinion.

PO TENE LEAN! “BERT my IVE APO S SUT OU aneaer reagan EAR eens ENE rn ane canes: CAL,

eae > See 2S 8 2) oe “~

COMMONWEALTH v. MATTHEWS, Appellant. 67

65, (1971). Statement of the Case—Opinion of the Court

Mr. Justice Pomxsor filled « dissenting opinion, in which Mr.

Justice Rosrats joine4.

Mr. Chief Justice Bett took no part in the consideration or

decision of this case.

Arguct January 19, 1971. Before JonEs, EAGEN,

O’Brien, Roserts, Pomeroy and Bagsteai, JJ.

Appeal, No. 384, Jan. T., 1970, from judgment of

sentence of Court of Common Pleas, Triai Division, of

Philadelphia, April T., 1968, No. 888, in case of Com-

monwealth of Pennsylvania v. William Matthews.

Judginent affirmed.

Indictment charging defendant with murder. Before

Dory, J.

Verdict of guilty of murder of the first degree; post-

‘rial motions by defendant denied, and judgment of

sentence entered. Defendant appealed.

Abraham J. Brem Levy, for appellant.

Louis A. Perez, Jr., Assistant District Attorney,

with him Milton M. Siein, Assistant District Attorney,

James D. Crawford, Deputy District Attorney, Richard

A. Sprague, First Assistant District Attorney, and Ar-

len Specter, District Attorney, for Commonwealth, ap-

pellee. ¢

Oprnion sy Ma. Justices Eacsn, December 29, 1971:

William Matthews, sentenced to life imprisonment

following his conviction by a jury of murder in the

first degree, appeals from the judgment of sentence.

The sufficiency of the trial evidence to sustain the

verdic’. is not questioned, nonetheless, we have studied

the record and are satisfied the evidence was ample to

establish Matthews’ guilt of murder in the first degree

beyond a reasonable doubt.

— 00 i tS ae ET

eer iy? Om 6 NT

68 COMMONWEALTH v. MATTHEWS, Appellant.

Opinion of the Court. (446 Pa.

From the evidence, the jury was warranted in find-

ing that Matthews, on February 23, 1968, acting in

concert with his nephew, James Williams, and a friend,

James Jackson, robbed Randolph Butts in Philadel-

phia and during the perpetration of the robbery Butts

was stabbed four times by one of the felons, causing

injury which resulted in Butts’ death.

Appellant cites several alleged errors during the

prosecution proceedings which he asserts require a new

trial. We conclude these assignments of error are with-

out merit for the reasons that follow.

During the investigation of the crimes involved, the

police apprehended and questioned Williams, who ad-

mitted having participated in the commission of the

robbery, and accused Matthews and Jackson of also

having participated and informed the police that Mat-

thews had hidden the knife used in the stabbing in an

apartment at a certain address. Based on this informa-

tion, an investigating officer caused a search warrant

to issue for the apartment. The complaining affidavit.

signed by a police detective, Verbrugghe, stated the

following: “On Fr. 2-23-68 about 11:00 p.m. Randolph

Butts 40-N., 438 Green St., was taken from the high-

way 3856 Haverford Ave. to the Presbyterian Hosp.,

and pronounced dead from stab wounds of the back.

Investigation disclosed that James Williams 18-N., res.

3856 Haverford Avenue took part in the robbery of

Randolph Butts. James Williams stated that Willian:

Matthews 18-N., 3856 Haverford and James Jackson

19-N., 4422 Brown 8t., hed stabbed Randolph Butts

and hid the knife in the 8rd floor apartment [rear]

of 3856 Haverford Ave.” The warrant described the

property sought as “one pocket knife” and bloody cloth-

ing worn by William Matthews on Friday, February .

23, 1968.

—_— ee ee ee a ial ag

COMMONWEALTH MATTHEWS, Appellant. 69

65, (1971).] Opinion of the Court

Upon arriving at 3856 Haverford Avenue at 12:30

am., on February 24th, (the apartment of appellant’s

sister), the police took appellant into custody, placed

him under arrest, and pursuant to the warrant seized

an eight-inch kitchen knife (otherwise described as a

“butter knife”).

Initially, appellant suggests that the affidavit upon

which the search and seizure warrant was based lacks

the requisite information for a finding of probable

cause.

The foundation of the law of search and seizure is

the Fourth Amendment, which is binding on the states

under the Due Process Clause of the Fourteenth

Amendment. Mapp v. Ohio, 367 U.S. 643, 81 8. Ct. 1684

(1961). The Fourth Amendment in pertinent part

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