United States ex rel. Sullivan v. Cuyler

• Decision Date: 16 December 1982
• Docket Number: Civ. A. No. 77-2527.
• Citation: 553 F. Supp. 1236
• Parties: UNITED STATES of America ex rel. John SULLIVAN v. Julius T. CUYLER, Superintendent State Correctional Institution Graterford, Pennsylvania and The District Attorney of Philadelphia County.
• Court: U.S. District Court — Eastern District of Pennsylvania

553 F. Supp. 1236

UNITED STATES of America ex rel. John SULLIVAN v. Julius T. CUYLER, Superintendent State Correctional Institution Graterford, Pennsylvania and The District Attorney of Philadelphia County.

Civ. A. No. 77-2527.

United States District Court, E.D. Pennsylvania.

December 16, 1982.

MEMORANDUM AND ORDER

JOHN MORGAN DAVIS, Senior District Judge.

Before the court are both petitioner's and respondent's objections to the proposed Findings and Recommendation of Magistrate Edwin E. Naythons which determined the merits of this habeas corpus petition. As the magistrate conspicuously noted, this case is well-travelled. Yet, I suspect it is destined to continue the evitable journey upward to the pinnacle of the appellate courts. Nevertheless, it is my duty to make a de novo determination of those portions of the findings and recommendation to which objection is made pursuant to 28 U.S.C. § 636(b)(1) (1982). See Local Rule 7 IV(b). This duty, of course, is compelled by Article III of the Constitution. See gen., United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

In making this determination, I have reviewed the entire record in this case which includes: (1) the trial transcript;¹ (2) the Post Conviction Hearing Act transcript;² (3) the habeas corpus hearing transcript;³ (4) all briefs and memoranda submitted by counsel; and (5) all prior opinions issued by state and federal courts. Oral argument was heard on November 18, 1982. A careful and independent review of the entire record of this case convinces me that the learned Magistrate's conclusion that the petitioner was deprived of the effective assistance of counsel is correct and the writ must issue. Because the learned Magistrate set forth his rationale in skillful detail, the court approves and adopts his findings and recommendation as if fully set forth herein. I write separately only to address the specific objections raised by the parties.

Preliminarily, I note that the petitioner's objection to the Magistrate's consideration of the sufficiency of the evidence issue is specious. By Order⁴ this court referred the case to the Magistrate for the evidentiary hearing previously ordered by this court.⁵ In addressing the sufficiency of the evidence issue the Magistrate merely followed the mandate of the court of appeals which directed that this issue be considered in the first instance.⁶ In any event, after an independent review of the state court trial record, I conclude that the evidence was constitutionally sufficient to sustain the conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and adopt the reasoning of the learned Magistrate.⁷

Both the petitioner and the respondent present a general challenge to the numerous findings made by the Magistrate based upon a lack of evidence in the record and erroneous credibility determinations. I have reviewed each of the objections independently and I find them without merit. While I unequivocally have the power to accept or reject the Magistrate's findings, or to recall witnesses and receive further evidence,⁸ I have no doubt as to the soundness of the Magistrate's credibility findings based upon his ability to hear and view the witnesses⁹ and his cogent reasoning. It must be remembered that in effective assistance of counsel cases, it is necessary to probe the decision-making process of counsel. Moreover, the Magistrate in this case was trying to reconstruct a sequence of events which occurred over fifteen years ago. Consequently, in many instances a web of circumstantial evidence must be used to uncover the ultimate facts. In reviewing the Magistrate's findings, I cannot say that they lack a sufficient evidentiary basis to require their outright rejection or reception of further evidence on any point.

With regard to petitioner's objection to the admission and accreditation of certain hearsay testimony implicating him in various illegal activities, I find no error. Because the evidence was not offered to prove the truth of the matters, but to shed light on the prosecution's theory, it is not hearsay. Fed.R.Evid. 801(c).¹⁰ Furthermore, this evidence is relevant to show the Commonwealth's possible theory of prosecution and possible lines of cross-examination. The record contains sufficient evidence that the Commonwealth believed these accusations and was prepared to challenge the defense at trial with them. E.H. at 42-44 (June 1, 1982); E.H. 55-60 (June 21, 1982). Similarly, I do not agree that the record is devoid of any evidence tending to indicate the defense's knowledge of the Commonwealth's theories or potential lines of cross-examinations; i.e. prior convictions, which could have affected the tactical decisions of the defense. The petitioner's criminal record was available to the parties, known to the union membership, and, in fact, stipulated to in the penalty phase of the case. The defense was well acquainted with all the union witnesses in the case, and employed an investigator who interviewed most of these witnesses. Moreover, the defense counsel were generally cognizant of the criminal records of other union members interviewed by the police. E.H. at 12 (May 7, 1982). Thus, as the Magistrate noted, to ascribe such wholesale ignorance to a well prepared defense is ludicrous. See Findings and Recommendations at 20 n. 22. Peruto, in fact, testified that factors other than petitioner's meritricious relationship influenced the decision not to put forth a defense. Id. at 26. E.H. at 51 (May 12, 1982). The Magistrate was well within his mission as the fact-finder when he found based upon the circumstantial evidence in the record, that the attorneys for the defense were aware of the petitioner's prior convictions and the rumors among the union rank and file of his illegal activities.

Finally, petitioner's objection to the Magistrate's consideration of the statements of witnesses outside the union hall at the time of the shooting is meritless. The statements are part of the record, and prompted an Order by this court concerning their discoverability. They were properly considered by the Magistrate in assessing Peruto's credibility. The remaining objections made by the petitioner are equally meritless and do not warrant discussion.

The respondent's objections are essentially reduced to two areas of dispute. First, the Magistrate's credibility determinations regarding Peruto's concern for the interest of his client, Carchidi, and Carchidi's desire to participate in the defense of the petitioner are attacked as erroneous and internally inconsistent. Second, the respondent assails the Magistrate's conclusion of law that an actual conflict of interest and adverse affect on the performance of counsel was present when counsel failed to call co-defendant Carchidi as a defense witness, even though his testimony would have refuted that of the state's star witness, in order to protect him from possible self-incrimination.

As I heretofore stated, the Magistrate faced the unenviable task of reconstructing facts which occurred well over a decade and a half ago. While rejecting much of Peruto's testimony¹¹, he found that "Peruto decided not to use Carchidi's testimony because he perceived the possibility of harm to Carchidi's later defense and the incriminating potential of cross-examination".¹² Based on the trial transcript, the Magistrate concluded that Peruto perceived this danger before the close of the prosecution's case.¹³ The Magistrate then points out that Peruto's 1974 testimony is consistent with his 1982 testimony with regard to considering the interests of the co-defendant in the decision to present no defense at petitioner's trial. Contrary to the respondent's suggestion, the Magistrate did not misread Peruto's 1974 testimony. Under direct examination by Mr. Moran, the following colloquy took place:

Q. Wait just a minute, sir. You were concerned with the other two defendants you represented; is that correct?

A. Yes. Why expose your defense if you've got two more people to come to trial and the Commonwealth has not presented a case?

Q. So that entered into your consideration as to whether or not you presented a defense in the Sullivan case?

A. Sure, it did. When we're talking about back and forth. For example, I've heard Judge DiBona testify today, and yes, we were sort of playing devil's advocate. I didn't want the defense to go on because I thought we would only be exposing the defendant witnesses for the other two trials that were coming up. Now on the other hand, you see, the three defendants had already decided between themselves which of us they wanted to be chief counsel. John Sullivan picked Fred DiBona, the other two defendants picked me. So certainly I had to be chief counsel and face the trial of the other two men. And as I look back on that, although it was not my thought that John Sullivan should be shortchanged in any fashion, I'm afraid that it was my thought, that I was over-solicitous for the other two defendants being ready to be tried.

P.C.H.A. at 101 (April 25, 1974) (emphasis added).

This testimony, while not in minute detail, clearly reflects counsel's concern for the defense of the untried defendants if they were to testify on behalf of the petitioner. This, of course, is consistent with the trial transcript and Peruto's more embellished testimony in 1982. Accordingly, I find that the respondent's objections to these credibility findings are without merit.¹⁴

In attacking the Magistrate's legal conclusion that an actual conflict of interest developed at trial which adversely affected the performance of counsel, the respondent asserts that even if a conflict existed no adverse effect can be shown because "counsel were no less effective than any other lawyer would have been." Memorandum in support of Commonwealth's Objections at 10. Simply stated, the respondent suggests that no competent lawyer would have allowed...