United States ex rel. Spears v. Rundle

• Decision Date: 15 January 1969
• Docket Number: No. 17291.,17291.
• Parties: UNITED STATES of America ex rel. George L. SPEARS, E-7065, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

405 F.2d 1037 (1969)

UNITED STATES of America ex rel. George L. SPEARS, E-7065, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania.

No. 17291.

United States Court of Appeals Third Circuit.

Argued November 21, 1968.

Decided January 15, 1969.

Melvin M. Dildine, Asst. Defender, Philadelphia, Pa. (John W. Packel, Asst. Defender, Herman I. Pollock, Defender, Philadelphia, Pa., on the brief), for appellant.

Roger F. Cox, Asst. Dist. Atty., Philadelphia, Pa. (James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before GANEY, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

The District Court, after hearing testimony and argument in a habeas corpus proceeding attacking appellant's detention by the State, ruled that he was entitled to a Jackson v. Denno¹ type hearing before a statement signed by him could be admitted into evidence against him on an aggravated robbery of a savings association charge.² The State did not appeal from that ruling. Regarding appellant's contention that he was denied effective assistance of counsel at the trial of the aggravated robbery charge, the District Court held that he was not entitled to a new trial but was entitled to one only if his signed statement is later found in a Jackson v. Denno type hearing to have been involuntarily given. He has appealed from this ruling.

The District Court also ruled that appellant had exhausted his State post conviction remedies.³ The State agrees with this ruling. There is a possibility that the statement may be found or conceded to have been given and signed involuntarily and appellant entitled to a new trial on the charge of aggravated robbery in which the State will not have the benefit of that statement. In such a trial the issue of effective assistance of counsel would be moot, and any decision thereon unnecessary. There is also a likelihood that the statement will be found to have been voluntarily given. In the latter eventuality, the issue of effective assistance of counsel would then be ripe for decision. However, in view of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (May 20, 1968),⁴ we think it better to answer appellant's Sixth Amendment claim now.

Appellant asserts that he was denied effective assistance of counsel at his trial by reason of the short time between his first meeting and discussion with his court appointed counsel and the time of trial. He maintains the time was too short because he did not have time to inform counsel about the circumstances surrounding his giving and signing a statement at a police station after he was arrested, which was later admitted into evidence against him at his trial on Bill of Indictment No. 1549, and to contact three possible alibi witnesses to testify in his behalf at his trial. The first reason has been removed by virtue of the District Court's ruling. Concerning the second, we agree with the District Court when it said: "Any prejudice resulting from the short time between counsel's appointment and the trial was mitigated when additional time to get witnesses was allowed." 268 F.Supp. 691, 700 (E.D.Pa.1967).

At the beginning of the trial on April 21, 1964, counsel immediately moved for a continuance in order that he might have time to prepare for trial, but his motion was denied. In the State's case, a witness was positive that appellant and one Olin Richard Davis, a co-defendant, were present at the site of the attempted holdup of a savings association on December 23, 1963, and that they dropped their headgear in fleeing from the place when he fired a gun; a detective identified the two caps (one of them fitted appellant) as having been found at the scene of the crime; a police officer read into evidence a statement signed by appellant and consisting of his answers to a series of questions put to him by the police immediately after his arrest about the attempted holdup. In defense, appellant took the stand and testified that he was not at the scene on December 23, 1963, but was ill in bed from December 16, 1963, to January 3, 1964, that this could be verified by three witnesses, including his parole officer, who were not called because of lack of time; that he was coerced into signing the statement; and that he had insufficient time to consult with counsel in the preparation of his defense. Before a verdict was rendered by the court, sitting without a jury, appellant changed his plea of "not...