In re Kravitz

• Decision Date: 12 May 1980
• Docket Number: No. H.C. 635.,H.C. 635.
• Citation: 504 F. Supp. 43
• Parties: In re Ethel KRAVITZ.
• Court: U.S. District Court — Middle District of Pennsylvania

504 F. Supp. 43

In re Ethel KRAVITZ.

No. H.C. 635.

United States District Court, M. D. Pennsylvania.

May 12, 1980.

Harold Cramer, Philadelphia, Pa., for petitioner.

Ronald T. Williamson, Asst. Dist. Atty., Norristown, Pa., for respondent.

MEMORANDUM

NEALON, Chief Judge.

Petitioner Ethel Kravitz was found guilty of the murder of her husband by a jury in Montgomery County, Pennsylvania in 1958. She sought to overturn that conviction through various judicial and extra-judicial proceedings for more than twenty-one years. On January 17, 1980, after evidentiary hearings into the substantive merits of her claims had been concluded, but before the legal issues could be presented for resolution, Mrs. Kravitz passed away.¹

Death terminates Mrs. Kravitz's long, personal quest for vindication. Her attorneys argue, however, that death does not end the instant habeas corpus action. They assert that petitioner's tarnished reputation and the operation of the Pennsylvania Slayer's Act, 20 Pa.Const.Stat.Ann. §§ 8801 et seq. (Purdon) (1975), which precludes petitioner's estate from inheriting through her murdered husband's estate, are "collateral legal consequences" that save her habeas corpus petition from landing "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 911, 4 L.Ed.2d 963 (1960) (Warren, C. J., dissenting).

After careful consideration, I must disagree. Neither the stigma of a murder conviction nor the pecuniary loss to her estate invest the deceased habeas applicant's collateral challenge to the validity of the 1958 conviction with the "live controversy" necessary to sustain this court's limited subject-matter jurisdiction. Accordingly, the petition for a writ of habeas corpus will be dismissed as moot.

I.

Pervading petitioner's efforts to reverse her 1958 murder conviction has been her strong desire to secure a declaration of her innocence; her interest in litigating the constitutionality of that conviction seems to have been only secondary. Indeed, Mrs. Kravitz has placed the finger on the man she claims actually killed her husband. She asserts that only some strange duress or compulsion exerted over her by the alleged perpetrator prevented her from divulging his identity at the time of the criminal investigation. During the hearings conducted in this case, however, Mrs. Kravitz, under oath, named her slain husband's brother-in-law, Morris Passon, as the real murderer. Passon, also under oath, vehemently denied the accusation.

This sensational charge and Passon's cryptic involvement in the whole affair fuel the intrigue that surrounds this celebrated and highly publicized case.² But the mystery and sensationalism interjected throughout the proceedings must not obscure the fact that the federal habeas court's role is limited to ascertaining the constitutionality of a conviction, not its correctness.³ Nor can the merits or demerits of petitioner's claims distract this court's consideration of the mootness issue. To put this matter in proper perspective, it is perhaps best to briefly relate the factual predicate for the constitutional issue presently before this court, and chronicle the procedural background of this protracted litigation.⁴

II.

Petitioner's husband was found dead in the marital bedroom of their home in Wynnewood, Pennsylvania, late in the afternoon of Independence Day, 1958. He had been shot several times and had been bludgeoned about the head and face. There were apparently no witnesses to the brutal slaying, but certain circumstantial evidence tended to inculpate petitioner and suspicion focused on her almost immediately.⁵ Less than an hour after the police arrived at the Kravitz home, Captain Shaefer, in the presence of several other Lower Merion Township police officers, questioned petitioner concerning the murder.⁶ During this interrogation, petitioner appeared distraught, and answered Captain Shaefer's questions hesitantly. Approximately forty-five minutes after the interrogation began, petitioner's pulse and blood pressure were checked by Dr. Shoemaker. Captain Shaefer resumed questioning petitioner twenty minutes later, but this interrogation lasted for only five minutes.

At approximately 9:30 that night, petitioner was taken to the Lower Merion Township police station for further questioning. Montgomery County Chief Detective Charles G. Moody interrogated petitioner at the police headquarters for about two hours, from 10:30 P.M. to 12:30 A.M. Between 1:00 and 1:30 A.M. petitioner was advised that she was being charged with the murder of her husband. Petitioner was then questioned by District Attorney Bernard DiJoseph from 2:00 to 2:30 A.M. Following this interrogation, which was tape-recorded, petitioner was asked a few questions by Detectives Tammany and Waller concerning certain blood-splattered apparel. At no time during any of these interrogations was petitioner advised of her right to remain silent or of her right to assistance of counsel.⁷

At the murder trial, law enforcement officers testified that petitioner had admitted wearing on the day of the homicide blood-splattered clothing found in the bedroom where petitioner's husband was slain.⁸ Also during the trial, Detective Moody testified that petitioner had made contradictory statements regarding the route she had taken to the home of her husband's brother-inlaw, Morris Passon, on the day of the murder.⁹ The alleged murder weapon was found in a culvert along Morris Road, one of the routes Detective Moody said that petitioner admitted taking to the Passon home on the day of the murder.¹⁰

No objections to the admissibility of her incriminatory statements were ever made at trial.¹¹ Nor does it appear that the voluntariness of these statements was questioned in her post-trial motions and direct appeal to the Pennsylvania Supreme Court. It seems that this issue was first raised when petitioner instituted the instant habeas corpus action in 1965.¹² While the admission of the challenged statements caused our Court of Appeals some concern, it affirmed Judge Follmer's dismissal of this claim on the ground that the Pennsylvania Post Conviction Hearing Act¹³ seemed to offer a state judicial forum for its adjudication.¹⁴ See In re Kravitz, 358 F.2d 734, 735 (3d Cir. 1966) (per curiam).

Petitioner's subsequent bid to seek state judicial review of the voluntariness of the incriminating statements was rejected without a hearing on the ground that she had "waived" this claim under section 4 of the PCHA. See Commonwealth v. Kravitz, 441 Pa. 79, 85, 269 A.2d 912 (1970). Petitioner then sought an executive pardon, but this avenue also proved unsuccessful.

In September 1975, petitioner instituted an action in the United States District Court for the Eastern District of Pennsylvania, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null and void." This lawsuit was dismissed without opinion.

Also in September 1975, petitioner filed in the Eastern District of Pennsylvania an application for a writ of habeas corpus. By this time petitioner had been released from prison and discharged from parole, and the habeas corpus action was dismissed for want of subject matter jurisdiction inasmuch as petitioner had not been "in custody" at the time the petition was filed, as required under 28 U.S.C. § 2254.

The Court of Appeals for the Third Circuit affirmed both dismissals. Kravitz v. Commonwealth, 546 F.2d 1100 (3rd Cir. 1977). Circuit Judge Gibbons dissented from the dismissal of the habeas corpus action, opining that jurisdiction over petitioner's Fifth Amendment claim was satisfied by relation back to the 1965 petition filed in this court. Judge Gibbons then suggested using Rule 60 of the Federal Rules of Civil Procedure to reopen the 1965 habeas corpus proceeding, and thereby obtain a federal determination of the constitutionality of her conviction.

On May 4, 1977, petitioner filed a motion pursuant to Rule 60 "to obtain a clarification or modification of the Court's Order ... denying the ... petition ...." Specifically, petitioner sought to add to Judge Follmer's Order of August 25, 1965 "express language retaining jurisdiction pending determination by the state courts of the constitutional issues presented to, but undecided by, this Court...." This motion was denied by Order dated June 16, 1977, with leave to file a second motion that conformed to the requirements of Rule 60(b).

Petitioner subsequently filed a motion under Rule 60(b)(6),¹⁵ which was granted by Order dated November 2, 1977. Respondent then moved to dismiss the petition for lack of jurisdiction on the grounds that petitioner was no longer in custody and Rule 60(b) relief was time-barred. By Order dated August 2, 1978, respondent's motion was denied. The August 2nd Order also vacated the Order of November 2, 1977 reopening this case, and scheduled a hearing on the question of the reasonableness for the delay in filing the Rule 60 motion. After reviewing the testimony offered at this hearing I concluded that the delay was not unreasonable and granted petitioner's motion for relief from judgment. See In re Kravitz, 471 F.Supp. 665 (M.D.Pa.1979).

While petitioner's Rule 60(b) motion was still pending, respondent moved to dismiss the habeas corpus petition on the ground of waiver.¹⁶ By Memorandum and Order dated June 5, 1979, 488 F.Supp. 38, I held that the 1970 state court waiver ruling was not conclusive in this federal habeas corpus proceeding and that an evidentiary hearing would be necessary to resolve the matter. In recognition of the likelihood that witnesses would become unavailable with the passage of additional time, and in an effort to efficiently employ judicial resources, the federal "waiver" hearing was combined with a hearing on the merits of petitioner's voluntariness claim.

These hearings were conducted August 20-22, 1979, and October 26, 1979. Following the October 26th...