U.S. ex rel. Thomas v. Cuyler, 75-2213

• Decision Date: 14 March 1977
• Docket Number: No. 75-2213,75-2213
• Citation: 548 F.2d 460
• Parties: UNITED STATES of America ex rel. Gregory A. THOMAS, Appellant, v. Julius T. CUYLER, Superintendent and District Attorney of Philadelphia County.
• Court: U.S. Court of Appeals — Third Circuit

Page 460

548 F.2d 460

UNITED STATES of America ex rel. Gregory A. THOMAS, Appellant, v. Julius T. CUYLER, Superintendent and District Attorney of Philadelphia County.

No. 75-2213.

United States Court of Appeals Third Circuit.

Submitted Nov. 12, 1976.

Decided Jan. 7, 1977.

Rehearing In Banc Denied March 14, 1977.

David A. Gradwohl, Philadelphia, Pa., for appellant.

Bonnie Brigance Leadbetter, Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, Pa., for appellees.

Before MARIS and WEIS, Circuit Judges, and GERRY, District Judge.

OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the relator, Gregory A. Thomas, from an order of the District Court for the Eastern District of Pennsylvania denying without a hearing his petition for a writ of habeas corpus. Thomas, after a jury trial in the Court of Common Pleas of Philadelphia, was convicted of first degree murder, aggravated robbery, carrying a concealed deadly weapon and conspiracy and was sentenced to life imprisonment. He appealed his conviction of the first two of these offenses to the Supreme Court of Pennsylvania on several grounds, among them alleged insufficiency of the evidence against him and alleged improper presentation before the jury of a Commonwealth witness' prior statement. The Supreme Court upheld the convictions. It ruled that the presentation of the prior statement in question in its entirety was excessive and, therefore, erroneous, since under Pennsylvania law the Commonwealth may present a prior inconsistent statement to impeach its own witness only to the extent that the witness, to the surprise of the Commonwealth, has testified adversely to its case. However, the Supreme Court held that here the error was harmless in view of the overwhelming evidence of guilt. Thereafter, Thomas filed the petition for a writ of habeas corpus from the denial of which the present appeal has been taken.

At Thomas' trial the Commonwealth called as witnesses, among others, Michael Grant, Renee Wilson, Milton Wilson and Anthony Gwaltney. Grant testified that on the afternoon of the day of the shooting death for which Thomas was charged, Thomas asked him to hold a gun for him because he had just shot a man. This Grant did not believe at the time, but when later he heard on a news telecast of the shooting, he gave the gun back to Thomas. Renee Wilson testified that on the day of the shooting Thomas told her to put in her house what she would find under a box in her back yard. She found a gun under the box and put it on a shelf in the cellar. Renee and her brother, Milton Wilson, testified that Thomas came to their house that same day and asked for and received the gun in the presence of Gwaltney and Michael Townsell (an accomplice of Thomas who was tried separately).

Gwaltney testified at Thomas' trial that he, Townsell and Milton Wilson were at Wilson's home when Thomas arrived there on the day of the shooting corroborating the Wilsons up to that point. However, he then testified that he could not remember anything further. It was at this juncture that the Commonwealth made reference to Gwaltney's prior statement to the police. Gwaltney testified that he recalled making the statement but did not remember what he said. The court then permitted the Commonwealth to cross-examine Gwaltney by reading the entire prior statement in the form of questioning as to whether he remembered making the particular assertions mentioned in the questions, including the assertions as to Thomas' retrieval of the gun and his admission that he had shot a man. To these questions Gwaltney answered that he, Townsell, Thomas and Milton Wilson were sitting in the front of the Wilson house but no conversation took place between them and that he remembered nothing further. The Commonwealth also presented testimony by Gwaltney given at the trial of Townsell to the same effect as his statement to the police. The gun referred to in the testimony was not produced by the Commonwealth.

On this appeal counsel ¹ for the relator contends that the relator was deprived of his constitutional rights when the prior unsworn statement of Gwaltney to the police was permitted to be used by the Commonwealth in cross-examining that witness. It is argued that the relator was deprived of his confrontation right under the Sixth Amendment by the use of this statement, since Gwaltney had not been subjected to cross-examination at the time it was made. That this contention is without merit was made clear by the Supreme Court of the United States in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), when, in its opinion in that case, the Court said (at p. 164, 90 S.Ct. at p. 1938): ". . . the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories."

It is further argued that the relator was denied his confrontation rights under the Sixth Amendment because Gwaltney's alleged lack of memory rendered the relator's right of cross-examination as to the contents of the statement illusory in fact. This question as to whether a witness' apparent lapse of memory so affects the defendant's right to cross-examine as to make a critical difference in the application of the Confrontation Clause has not yet been decided by the Supreme Court, having been expressly reserved by the Court in California v. Green, 399 U.S. at pp. 168-170, 90 S.Ct. 1930. It is likewise open in this circuit. The question was considered at length by Justice Harlan in his concurring opinion in California v. Green, however. In that opinion he said (399 U.S. at pp. 188-189, 90 S.Ct. at pp. 1950):

"Putting aside for the moment the 'due process' aspect of this case, . . . it follows, in my view, that there is no 'confrontation' reason why the prosecution should not use a witness' prior inconsistent statement for the truth of the matters therein asserted. Here the prosecution has produced its witness, Porter, and made him available for trial confrontation. That, in my judgment, perforce satisfies the Sixth Amendment. Indeed, notwithstanding the conventional characterization of an available witness' prior out-of-court statements as hearsay when offered affirmatively for the truth of the matters asserted, . . . this is hearsay only in a technical sense since the witness may be examined at the trial as to the circumstances of memory, opportunity to observe, meaning, and...