# Petition for Writ of Certiorari — Cuyler v. Matthews

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 952

## Text

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

ee

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:

D.
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 .....................

6

13

*))

81

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

9
20

3

14

15

13

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

ae

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

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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 .
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.

o

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

6

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:

wi

“—

7

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

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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

9

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).

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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).

11

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.”
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12

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 *

13

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.

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14

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. —

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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).

3

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

16

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 ——

Vv

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

Ls

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

R

19

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
LENIN OPO RELIES SOOT OIC EEE IRE IE Ot Ra et, a Pa pee st
- PD OED Rt PMR,

ea RNS A EET

VONG2ES rs 5 cali ae ie

A OT eS SU ae.

SES Dot OR ek BS”

20

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.

21

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.

Ss

a

NY Be OD AAPG ALL la PL

FOILED IER vee om :

99

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

23
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

E

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

24
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
v.

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
v.

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
v.
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

3
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

v.

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

28

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-

SS
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.

I.

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

31

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

32

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

i
‘
;
a
4
HW

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

33

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-

a

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

35

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

36

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

37

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.

38

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

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.”*

V.

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
'

41

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.

42

(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).

43

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.

44

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

46

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 , 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?

Nb

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. ———————

55

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

56

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

a

57

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 \ ”.

61

‘‘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

62

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

63

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

64

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

65

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;

(c) that although relator was sentenced to life
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

66

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.”

67

“. . 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).

a

ES RET LE EIDE IE IO IIE REELS LEE GEE

68

“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

69

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

70

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

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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.

72
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 de

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0470%3A1. Public record. Not legal advice.