U.S. ex rel. Abdus-Sabur v. Cuyler

• Citation: 653 F.2d 828
• Decision Date: 09 July 1981
• Docket Number: A,No. 80-1509,ABDUS-SABU,80-1509
• Parties: UNITED STATES of America, ex rel. Ahmadppellant, v. Julius T. CUYLER, Superintendent State Correctional Institution, Graterford, Pennsylvania and The District Attorney of Philadelphia County, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 828

653 F.2d 828

UNITED STATES of America, ex rel. Ahmad ABDUS-SABUR, Appellant, v. Julius T. CUYLER, Superintendent State Correctional

Institution, Graterford, Pennsylvania and The

District Attorney of Philadelphia

County, Appellee.

No. 80-1509.

United States Court of Appeals, Third Circuit.

Argued Nov. 6, 1980.

Reargued en banc May 11, 1981.

Decided July 9, 1981.

Joseph A. Torregrossa (argued), Philadelphia, Pa., for appellant; Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel.

Gaele McLaughlin Barthold (argued), Jane Cutler Greenspan, Asst. Dist. Attys., Michael F. Henry, Chief, Motions Division, Steven H. Goldblatt, Deputy Dist. Atty. for Law, Edward G. Rendell, Dist. Atty. Philadelphia, Pa., for appellant.

Argued Nov. 6, 1980.

Before GIBBONS and WEIS, Circuit Judges and WHIPPLE, District Judge. ^*

Reargued En Banc May 11, 1981.

Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this habeas corpus appeal, a state prisoner contends that a delay of twenty-five months between his arrest and trial violated his constitutional right to a speedy trial. He also asserts that he was denied his right of confrontation when hearsay evidence about lineup identification was introduced by the prosecution. Finding that most of the pretrial delay was attributable to the defense, and that the absence of objection to the identification testimony was a considered, tactical decision by defendant's counsel, the district court rejected petitioner's challenges. We agree and affirm.

In January, 1971, a group of eight men, singly and in pairs, entered Dubrow's Furniture Store in Philadelphia posing as customers. When all were in place, they pulled out guns and announced a robbery. Store employees were bound and several were kicked or pistol whipped. One was doused with gasoline and set afire. Three were shot, one fatally.

Four days later, petitioner Boelter was arrested and identified in a lineup as one of the gunmen by several Dubrow employees. He was tried twice. The first jury was unable to agree upon a verdict, but the second found him guilty of first degree murder. Boelter's posttrial motions were denied by the Court of Common Pleas and the judgment of sentence was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Boelter, 463 Pa. 162, 344 A.2d 475 (1975). ¹ Boelter later filed a petition for habeas corpus in the district court. After an evidentiary hearing, the district court, in an extensive opinion, denied the writ. United States ex rel. Boelter v. Cuyler, 486 F.Supp. 1141 (E.D.Pa.1980). ²

On appeal the petitioner has raised two issues that were the subject of the evidentiary hearing. They are not related, and we will address each in turn.

I THE SPEEDY TRIAL ISSUE

Boelter was arrested and jailed on January 8, 1971. He was indicted on February 11, and on March 29, the case was listed for trial. During this period, Boelter was represented by Nino Tinari, Esquire. Because he was unable to reach an agreement with the Boelter family on a fee arrangement, the lawyer withdrew from the case on May 24. A few days later, however, the Philadelphia Common Pleas Court designated him as court appointed counsel, despite the fact that he also represented another of the accused, Edward Sistrunk.

Tinari requested and received several continuances during the time from the initial trial setting until May 3, 1972, when he informed the court that Boelter wished to have other counsel. The defendant complained that his lawyer had not consulted with him in 16 months despite numerous written requests. The Common Pleas Court fined Tinari $1,000 for his conduct, or lack of it, in the case, ³ and the district court characterized his behavior as "reprehensible." 486 F.Supp. at 1144 n.5.

During the same period, the prosecutor to whom the case was assigned became ill and the matter was transferred to another assistant district attorney. Further delays resulted from the backlog of older cases and the court's reluctance to schedule jury trials during holiday periods. After Tinari was discharged, the court appointed Joel Moldovsky, an experienced and capable trial lawyer, to represent the defendant.

Between May and November 9, 1972, when Moldovsky filed a speedy trial motion, the parties obtained four more continuances. In ruling on the motion, the state court denied dismissal but ordered the trial to proceed no later than January 8, 1973. Nevertheless, it was again delayed and on February 20, 1973, the defense filed another speedy trial motion. It was denied, but the first trial began on February 26, 1973.

The district court attributed most of the first sixteen months of delay to the defense because of Tinari's unpreparedness, his fee dispute with the Boelter family, and his representation of the other defendant. The prosecution was charged with only two months and three weeks during the time Tinari was counsel.

The following ten months were divided equally between the Commonwealth and the defendant. Moldovsky required a few months to prepare for trial and moved to have the case transferred to another judge. During this period he also suffered severe illnesses and needed several weeks to recuperate. Five additional months were lost in court backlog and scheduling difficulties but there was no evidence of prosecution efforts to gain a tactical advantage through delay.

Having made these factual findings, the district court analyzed them in light of four factors articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972): "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." The district court determined that although the Commonwealth was responsible for some of the postponements, ⁴ the reasons for these continuances were neutral. With respect to the third factor, the court found that Tinari never demanded that the case be tried or the charges dismissed. Only after Moldovsky's appointment were Boelter's rights formally asserted.

Finally, the court cited three interests served by the right to a speedy trial that might have been prejudiced by the delay: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." 486 F.Supp. at 1151, quoting Barker v. Wingo The district court carefully weighed and balanced each factor and found the petitioner's sixth amendment rights had not been infringed. This conclusion was based on a painstaking review of each continuance, the reasons for delay, and possible prejudice to the petitioner. We find no error in the conclusion that the period of time between indictment and trial did not violate the constitutional guarantee of a speedy trial.

supra at 532, 92 S.Ct. at 2193. The only asserted detriment to the defendant's case was the unavailability of an alibi witness, but this man had contradicted Boelter's statement to the police and then disappeared. Even if found, the witness was unlikely to have been of any help to the defense, and a prompt trial would not have changed that circumstance. We agree with the district court that no prejudice to Boelter's defense of alibi resulted from the delay and, given the hung jury in the first trial, there was no harm to the defense strategy of asserting misidentification.

II THE CONFRONTATION ISSUE

The defense in the case was that of mistaken identity. At the first trial, the prosecution produced six witnesses who identified Boelter either at a lineup, in court, or both. In addition, the Commonwealth called Lieutenant Margulis, the police officer who supervised Boelter's lineup. On cross-examination, defense counsel was able to demonstrate inconsistencies in the descriptions given by the witnesses, as well as equivocal statements made by some of them at the lineups of Boelter and other suspects. Defendant undermined the identification testimony further by recalling several of the prosecution's witnesses as his own to reveal additional discrepancies. In addition, he called some Dubrow employees who witnessed the robbery-murder but were unable to identify Boelter.

Before any testimony was produced at the second trial, defense counsel, in his opening to the jury, stressed that he anticipated the Commonwealth would call a number of identification witnesses who had been uncertain about Boelter and, in fact, had pointed out others in the lineups. This prediction, however, proved to be faulty because the Commonwealth called only two of the lineup witnesses, DiMeo and Wagenheim, who made in court identifications of the defendant. They were cross-examined on their lineup designations of Boelter and also about their identifications at standups that did not include the defendant. Wagenheim, particularly, was questioned about the fact that he had seen only one robber but had pointed out another man as well as Boelter at lineups.

Lieutenant Margulis then testified that six persons had singled out Boelter at the lineup. In addition to DiMeo and Wagenheim, the officer listed Carson, Block, Sacchetti, and Porecca. The defendant's lawyer did not object to this hearsay testimony. Before questioning Margulis, defense counsel announced that he wished to reserve part of the inquiry until other witnesses had testified and then recall the Lieutenant as on cross-examination. The court stated: "I don't think you can do that. You better get your cross-examination in now or you may call him as your witness. That's the way the law reads." Transcript at 863. Counsel then sought to question Margulis about identifications by some of the witnesses at other lineups in which suspects other than Boelter were present. The trial judge refused to allow cross-examination of the officer or identification witnesses on this point.

After a lunch recess, the trial judge...