United States v. Myers, 14400.

Decision Date23 January 1964
Docket NumberNo. 14400.,14400.
PartiesUNITED STATES of America ex rel. Alvin R. DREW, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
CourtU.S. Court of Appeals — Third Circuit

COPYRIGHT MATERIAL OMITTED

Martin Heller, Philadelphia, Pa., for appellant.

Burton Satzberg, Asst. Dist. Atty., Philadelphia, Pa. (Arthur J. Marion, Asst. Dist. Atty., Arlen Specter, Asst. Dist. Atty., Chief, Litigation Division, F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

This is an appeal by Alfred W. Drew from the denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of Pennsylvania.1 The following pertinent facts and circumstances are gleaned from a stipulation2 filed in the District Court by counsel for Drew and the Commonwealth of Pennsylvania.

On January 29, 1958, Drew was arrested in Philadelphia for the illegal possession and sale of narcotics on September 5, 1957. He was indicted therefor on February 11, 1958, in the Philadelphia Court of Common Pleas.

On February 15, 1958, Drew retained counsel, who unsuccessfully attempted to contact Thomas Sherwood, an alleged alibi witness. He would establish, purportedly, that Drew was in New York on the date of the crime.

On February 15, 1958, Drew's counsel received notice that the trial was set for Wednesday, March 5, 1958. Before the selection of the jury on that date, Drew's attorney moved for a continuance on the ground that he lacked adequate time to prepare his case. He further advised the Trial Court that Drew's defense would be alibi, but that his attempts to contact Sherwood, as yet, had been unsuccessful.

The Trial Court denied the motion for a continuance, stating: "Well, I think you have had sufficient time to work it out and will refuse your motion."

Prior to the taking of testimony, on March 6, 1958, counsel for Drew requested the prosecution to divulge the identity of any eyewitnesses to the alleged crime not indorsed on the bill of indictment. The Commonwealth stated that there were no witnesses other than those listed on the bill of indictment.3

The Commonwealth's first witness was an undercover agent and police officer, named Harold Carter. He testified that on September 5, 1957, he and Irving Carter4 were walking together in the vicinity of Broad and South Streets in Philadelphia, when they saw Drew. Irving, according to Harold, then left him to speak to Drew, after which, Irving returned to converse with Harold. Then, allegedly, Harold approached Drew from whom he purchased narcotics. The purchase occurred about ten feet from where Irving stood. Harold stated that he rejoined Irving after the transaction and together they left the scene.5

Following this testimony, Drew's counsel moved for a continuance for the purpose of having the Commonwealth produce Irving Carter or to permit counsel to produce him. Drew's counsel asserted that this was the first time the defense had ever heard of Irving. The Trial Court refused the motion. Counsel later renewed the motion, and again it was refused.

As the trial began on Wednesday, Drew's counsel contacted Dale Wright in New York City, asking him to locate Sherwood. On Friday, Mr. Wright advised counsel "that the address given to him was incorrect" but that he would continue with his attempt to locate Sherwood over the weekend. Mr. Wright testified at the habeas corpus proceeding in the District Court that he located Sherwood on Monday, March 10, the last day of the trial.

At 11:15 a. m., of that Monday, counsel for Drew stated to the Trial Court that he had just received word from New York City that Sherwood had been located but was reluctant to go to Philadelphia. He expressed the thought, however, that the "witness might be in by 2:00 o'clock." The trial judge then stated: "If he is here by 2:00 we will take his testimony, otherwise there will be no more witnesses."

After the noon recess, counsel again made a motion for continuance to obtain the testimony of Sherwood. To demonstrate the "bona fides" of the motion, Drew claims, counsel then introduced a statement of a "telephone message" from Mr. Wright, signed by counsel's secretary. It read:

"Thomas Sherwood, the witness, can be reached at University 4-1952 or University 4-9649 before 12:30 P.M.; he is a porter in Leo\'s restaurant at 2077 7th Avenue. He will be reluctant to come over to Philadelphia to testify on the stand because he is an ex-con and in domestic trouble with his wife. He does know that Alvin Drew was in New York from September the 1st to September 15th and specifically on September the 5th, and he does know Alvin Drew."

This motion was also denied.

Thereafter on the same day, the jury adjudged Drew guilty. He received a sentence of seven and one half to thirty years and is presently confined in the State Correctional Institution at Graterford, Pennsylvania.

Drew, represented by his counsel in the Trial Court, then appealed to the Superior Court of Pennsylvania. In affirming his conviction, it found that there was no "abuse of discretion in the refusal of the trial judge to grant a continuance" to the defense so that it could obtain the testimony of Irving Carter.6 There was no appeal from the affirmance.7

Subsequently, Drew filed a petition pro se for a writ of habeas corpus in the Court of Common Pleas for Philadelphia. In dismissing his petition, it stated that "his contention that an alleged eye-witness Irving Carter should have been called at the time of the trial * * *"8 was decided by the Superior Court. The Superior Court affirmed the dismissal of Drew's habeas corpus petition on the opinion of the Court of Common Pleas.9 On June 1, 1961, in an unreported order, the Supreme Court of Pennsylvania refused allocatur.10 The United States Supreme Court denied certiorari.11

On July 3, 1962, Drew filed a pro se petition for writ of habeas corpus in the United States District Court. On July 16, the District Court appointed counsel to represent petitioner.12 An amended petition for writ of habeas corpus was filed on August 23. After conducting a full hearing, the District Court held that there was no denial of due process because of the refusal of the Trial Court to grant Drew's motions for continuance to obtain the testimony of Irving Carter and Sherwood, the alleged alibi witness.13

This appeal presents the following issue: Whether Drew was denied due process of law by the cumulative effect of (1) the Commonwealth's failure to disclose the name of an alleged essential witness, Irving Carter, (2) the Trial Court's refusal to grant Drew a continuance to obtain the testimony of an alleged essential witness, Irving Carter, and (3) the Trial Court's refusal to grant the defense a continuance to obtain the testimony of an alleged alibi witness, Thomas Sherwood. On the basis of the record before us, it is apparent that the State courts have never ruled on whether there was a denial of due process of law because of the cumulative effect of these three points. Rather, they have ruled merely on the second point independently.14

1. The Commonwealth's Failure to Disclose the Name of an Alleged Essential Witness, Irving Carter.

The prosecution concedes that Irving Carter made the contact with Drew for Officer Harold Carter, conversed with Harold immediately before the alleged illegal transaction, and was merely about ten feet away from the spot where the narcotics were purchased. Accordingly, Irving was aware of the identity of the individual consummating the alleged illegal transaction which he, indeed, had set up for Harold. Moreover, the record shows that Irving was the only witness, besides Harold, who could have identified the accused as being at the scene of the alleged illegal transaction.

To engage in a semantic argument whether Irving fits within the definition of an eyewitness, is to provoke a needless discussion.15 Although Irving may have been unable to see the claimed passing of the tiny narcotics package between Drew and Harold, a conclusion that he was unable to see Drew is untenable. Therefore, whether or not Irving was an eyewitness, what he saw — as it relates to the identity of the individual allegedly conducting the illegal transfer with Harold — would appear to make him an essential witness. Calling him could have elicited relevant and material facts contributing to a determination of the truth. And not only may a trial judge, as a proper exercise of his discretion, direct the prosecution to call eyewitnesses to the crime,16 but any additional witnesses that are necessary to elicit relevant and material facts contributing to a determination of the truth.17 Drew, it is clear, had the right "to have all of the facts connected with the alleged illegal possession and sale of narcotics * * * fully and fairly disclosed by the prosecution * * *."18

On Thursday morning, March 6, 1958, the assistant district attorney said that there were no other witnesses to the alleged transaction other than those on the bill of indictment. This may have been inspired by the prosecution's reluctance to disclose the identity of the informer. Preserving the anonymity of persons who furnish information of law violations encourages citizens to perform their duty of communicating knowledge about commission of crimes to the proper officials.19

Yet, even assuming that Pennsylvania recognizes the privilege20 to withhold from disclosure the identity of persons who furnish information of law violation to officers charged with enforcement of law, it nonetheless is a limited privilege. The United States Supreme Court has held that the fundamental requirements of fairness demand that the...

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