Torrance v. Salzinger, 397.

• Citation: 195 F. Supp. 804
• Decision Date: 07 July 1961
• Docket Number: No. 397.,397.
• Parties: James F. TORRANCE, Plaintiff, v. Joseph SALZINGER, Warden of the Dauphin County Prison, and Wesley M. Barrick, Sheriff of Dauphin County, Pennsylvania, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

195 F. Supp. 804

James F. TORRANCE, Plaintiff, v. Joseph SALZINGER, Warden of the Dauphin County Prison, and Wesley M. Barrick, Sheriff of Dauphin County, Pennsylvania, Defendants.

No. 397.

United States District Court M. D. Pennsylvania.

June 30, 1961.

As Amended July 7, 1961.

Elder W. Marshall, Gilbert J. Helwig, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., F. Brewster Wickersham, Harrisburg, Pa., for petitioner.

Anne X. Alpern, Atty. Gen., Martin H. Lock, Dist. Atty. of Dauphin County, Harrisburg, Pa., Huette F. Dowling, Sp. Deputy Atty. Gen., Alfred P. Filippone, Deputy Atty. Gen., for respondents and Commonwealth of Pennsylvania.

William Lipsitt, Harrisburg, Pa., for Wesley M. Barrick.

FOLLMER, District Judge.

This is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner is presently at large on bail by Order of a Circuit Court Judge pending the disposition of this matter.

On June 5, 1958, petitioner was sentenced to undergo imprisonment in the Dauphin County, Pennsylvania, prison for consecutive sentences of not less than one nor more than two years pursuant to a verdict of guilty entered on July 24, 1957, in said Dauphin County Court of Quarter Sessions on two separate indictments charging:

1. Conspiracy to cheat and defraud the Pennsylvania Turnpike Commission.

2. Misbehavior in office.

Petitioner appealed to the Pennsylvania Superior Court which affirmed his conviction except as to one count in the misbehavior in office indictment, Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57. The Pennsylvania Supreme Court granted allocatur but affirmed the conviction, 399 Pa. 387, 160 A.2d 407.

Petitioner then made application to the Supreme Court of the United States for writ of certiorari which was denied November 21, 1960, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194, and a rehearing was denied January 9, 1960, 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371.

In his original and supplemental petitions, petitioner alleges that he was denied due process of law and equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution in eight respects which were set forth in Paragraph 5 of the petition and which have been condensed as hereinafter set forth and will be considered seriatim, beginning with 5(b). Discussion on 5(a) and 5(h) will be reserved until the last.

Reason 5(b)

The District Attorney of Dauphin County and a Special Deputy Attorney General of the Commonwealth of Pennsylvania intruded upon said investigating grand jury and illegally and erroneously instructed them on the law.

The Superior Court of Pennsylvania (Commonwealth v. Evans et al., 190 Pa. Super. 179, 198, 154 A.2d 57, 69) said:

"The allegation of intrusion by the district attorney and the special deputy attorney general is likewise extraneous to the indictments and is without merit.

"`It is the duty of the district attorney * * * to attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required. It is highly improper, however, for the district attorney * * * to take part in the deliberations of a grand jury, as it is their duty to consider alone the evidence and apply it to the case.' Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 113, 14 A.2d 907, 910. The record shows that the district attorney and the deputy attorney general properly attended upon the investigating grand jury giving only general advice. There was no improper conduct or intrusion upon its deliberations."

The Court there also said:

"A further consideration is that the investigating grand jury and the indicting grand jury are separate legal bodies. Although both may have considered the same alleged crimes involving the same individuals, their proceedings, deliberations, and presentments are distinct. Extraneous matters affecting one may not influence the other, and irregularities before one are not always present in the other; the two bodies are unrelated in this respect. Consequently, an indictment by a regular grand jury is not necessarily tainted by some irregularity or improper influence alleged to have affected the investigating grand jury. Com. v. Gross, supra, 172 Pa.Superior Ct. 85, 90, 91, 92 A.2d 251. At least, the irregularity or improper influence must be shown to have also affected the indicting grand jury. Nothing of this nature appears in this case. `No matter how irregular the investigatory proceedings before the grand jury may have been, the presentment at least furnished the district attorney with information sufficient to justify his application for leave to present a district attorney's bill.' Com. v. Brownmiller, 137 Pa.Superior Ct. 261, 267, 9 A.2d 155, 158."

As an issue of fact, there was ample basis for the determination thus made by the Pennsylvania court. Moreover, the Court's discussion pinpoints the fact that petitioner is referring to the investigating grand jury, not the regular indicting grand jury. There was an indictment duly returned by a regular grand jury. There was an investigating grand jury serving a purpose under State practice somewhat akin to the preliminary hearing before a United States Commissioner in Federal practice for determination of probable cause. That no constitutional issue for consideration in habeas corpus is involved is forcefully demonstrated by Judge Parker's remark in Barber v. United States, 4 Cir., 142 F.2d 805, 807, that "The only purpose of a preliminary hearing is to determine whether there is sufficient evidence against an accused to warrant his being held for action by a grand jury; and, after a bill of indictment has been found, there is no occasion for such hearing."¹

Reason 5(c)

After presentments had been returned by the special investigating grand jury, the District Attorney of Dauphin County, without obtaining court approval as required by the law of Pennsylvania, presented indictments to the regular grand jury.

The Superior Court points out (Commonwealth v. Evans et al., 190 Pa.Super. 179, 199, 154 A.2d 57, 69) that "On January 21, 1957, the court entered an order that the district attorney `prepare and submit to the regular January, 1957, Grand Jury now in sessions, bills of indictment covering all the matters contained in the Presentment of the Special Grand Jury of Investigation made to the Court on Friday, January 18, 1957.'" This is fully borne out by the record. It was held that this "was sufficient leave of court for submission of the indictments." Aside from any lack of merit in petitioner's contention, such determination of the State law was purely a matter for the State courts and involves no constitutional question which might be invoked in habeas corpus, Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036.

Reason 5(d)

The indictment at No. 216 January Sessions 1957 charged petitioner and certain others with conspiracy to cheat and defraud the Pennsylvania Turnpike Commission.

The indictment at No. 220 January Sessions 1957 charged petitioner with misbehavior in office.

The Court consolidated the trial of said charges against petitioner and others, with the trial of certain officers of Manu-Mine Company upon charges of obtaining money by false pretense at No. 218 January Sessions 1957.

The consolidation of the trial upon said indictments was done over the objections of the petitioner and resulted in a trial lacking in due process.

On this matter the Superior Court of Pennsylvania stated, inter alia (190 Pa. Super. 179, 230, 154 A.2d 57, 84):

"Upon motion of the district attorney, to which the defendants objected, the court permitted the consolidation of the indictments for trial. The general rule is that the court in its discretion may consolidate two or more indictments for trial where the offenses charged are similar, related, or connected unless substantial prejudice will result to the accused. Com. v. Krzesniak, 180 Pa.Superior Ct. 560, 567, 119 A.2d 617. The consolidation of a conspiracy indictment with other related charges will normally not be disturbed where it appears the evidence that was admissible on the crimes charged in the other indictments tended to support the conspiracy charge. Com. v. Dixon, 179 Pa. Superior Ct. 1, 5, 115 A.2d 811. The consolidation for trial of indictments charging conspiracy and misdemeanor in office has been recognized. Com. v. Ackerman, supra, 176 Pa.Superior Ct. 80, 85, 106 A.2d 886. And, in general, defendants charged with conspiracy should be tried together. Com. v. Antico, 146 Pa.Superior Ct. 293, 311, 22 A.2d 204."

On the record this Court could not say that the trial court and the appellate courts of Pennsylvania erred in finding that petitioner was not prejudiced by a consolidation of the indictments for trial. However, even at best, this can rise no higher than a question of law involving the exercise of the trial court's discretion (Schaffer et al. v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921) and does not encompass any due process issue for habeas corpus, Brandenburg v. Steele, 8 Cir., 177 F.2d 279. The mere fact that there has been unsuccessful recourse to appeal does not make habeas corpus available as a further appellate step, United States ex rel. Saunders v. Myers, 3 Cir., 276 F.2d 790; Wilson v. Lanagan, D.C.Mass., 19 F.Supp. 870.

Reason 5(e)

The trial judge permitted the Commonwealth to read to the jury the lengthy transcript of the testimony before the grand jury of one of petitioner's co-defendants.

Petitioner seeks to assign numerous reasons why the admission at the trial of the testimony of a defendant, John D. Paul (which testimony was given before the investigating grand jury and contained references to the defendant Torrance) was error. Defendant Paul at no time during the trial took the stand to testify. The trial started June...