United States ex rel. Dessus v. Commonwealth of Pa.

• Decision Date: 29 June 1970
• Docket Number: Misc. No. 69-609.
• Citation: 316 F. Supp. 411
• Parties: UNITED STATES of America ex rel. Ronald James DESSUS v. COMMONWEALTH OF PENNSYLVANIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

316 F. Supp. 411

UNITED STATES of America ex rel. Ronald James DESSUS v. COMMONWEALTH OF PENNSYLVANIA.

Misc. No. 69-609.

United States District Court, E. D. Pennsylvania.

June 29, 1970.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arlen Specter, Dist. Atty., Philadelphia County, Samuel T. Swanson, Asst. Dist. Atty., for Commonwealth of Pennsylvania.

Ronald James Dessus, pro se.

OPINION

LUONGO, District Judge.

Ronald James Dessus, a state prisoner, has filed this petition for writ of habeas corpus contending that his conviction on various charges of robbery, burglary, assault and battery and rape (Indictment Nos. 283-289, 292, 293, January Sessions 1967, Court of Quarter Sessions, County of Philadelphia)¹ were obtained in violation of his constitutional rights.

by various trial rulings including (a) refusal to charge on the crime of fornication, (b) admitting into evidence statements of the deceased (Lena Alexandroff) in violation of the hearsay rule, (c) admitting into evidence statements by relator to a fellow prisoner in violation of the hearsay rule, (d) admitting into evidence the results of psychological tests administered by the Commonwealth in violation of the hearsay rule, and (e) failure to declare a mistrial for the Commonwealth's failure to follow the court's order on the sequestration of witnesses.²

The background facts of this petition, briefly, are these:

In the early morning hours of April 3, 1966, three women—Lena Alexandroff, 79 years of age, her daughter Natalie Tuchar, 44 years of age, and Natalie's daughter, Paula, 14 years of age—were brutally beaten and raped in their home at 5120 Chester Avenue, Philadelphia, by three men. As a result of the injuries sustained that morning, Lena Alexandroff died on April 20, 1966.

When the police arrived at the scene of the crime, Paula Tuchar gave them a description of two of the assailants. A few minutes later Dessus and a co-defendant, John Burgess, were arrested a few blocks from the scene of the crime. A third co-defendant was later arrested. There was a great deal of publicity about the crime,³ but because of the grant of a motion to quash his indictment (see Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966)) Dessus did not come to trial until March, 1967, almost a full year after the date of the crime. By that time much of the pretrial publicity had subsided.

After a jury trial, Dessus was found guilty of murder in the first degree (on bill No. 290 which is not under attack here) and the penalty for that crime was set at life imprisonment. The jury also found Dessus guilty of all counts in the remaining bill save one charging him with assault and battery with intent to murder Lena Alexandroff. On these other charges, relator was sentenced to 30-60 years to run concurrently with the life sentence imposed on the murder bill. The Superior Court of Pennsylvania affirmed the judgment of sentence, Commonwealth v. Dessus, 214 Pa.Super. 347, 257 A.2d 867 (1969), and the Supreme Court of Pennsylvania denied his petition for further appeal. The petition here followed immediately.

After a careful study of the voluminous state records, I conclude that relator's contentions may be disposed of on those state records without an evidentiary hearing in this court. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

1. Arrest and Seizure.

Relator contends that the arrest and subsequent search of his person were unlawful because the arresting officers did not have probable cause to arrest him. The arrest was made under these circumstances:

The police arrived at the scene of the crime at approximately 4:20 a. m. Within a few minutes, Paula Tuchar, one of the victims, gave a brief description of two men to an Officer Webster who relayed the description over police radio. The men were described as Negro males, both about 5' 10" tall, both wearing dark clothing, but one wearing a light tan trenchcoat, and the other possibly wearing a hat. About five blocks from the scene of the crime, at approximately 4:30 a. m., a police cruiser spotted Dessus and Burgess walking down the street. Both men were Negro and stood about 5' 10" tall. Burgess was wearing a hat and dark clothing, while Dessus was dressed in dark clothing and was carrying a light tan trenchcoat. The police cruiser pulled up alongside the suspects and the officers requested them to get into the car. Burgess began to do so, but Dessus started to run down the street. One of the policemen ran after him. During the chase Dessus was observed dropping the trenchcoat on a church lawn. He then hid underneath an automobile where he was eventually apprehended. The police retrieved the trenchcoat. Wrapped in it was a table model radio which was later identified as belonging to Lena Alexandroff. The police then took Dessus and Burgess (and another suspect later released) to a police station where they made a more thorough examination of relator's person. On him, they found numerous items, including a woman's comb, a ring, and a pair of earrings, all of which were later identified as belonging to the victims.

An arrest without a warrant is valid under the Fourth and Fourteenth Amendments so long as it is based on probable cause that the person arrested was committing or had committed an offense. United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966). Probable cause exists where "the facts and circumstances within their the arresting officers knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Margeson, supra.

In the instant case, the police were in the possession of sufficient facts to give them probable cause to arrest relator. When the police officers spotted them, Dessus and Burgess were walking on a deserted street in the early morning hours, near the scene of the crime. The two men fit the general description relayed by police radio. Coupled with these factors was Dessus' attempted flight when approached by the police officers. At that point there can be no doubt that the police officers had probable cause to arrest Dessus. See, e. g., Davis v. United States, 409 F.2d 1095 (5th Cir. 1969); United States ex rel. Walls v. Mancusi, 406 F.2d 505 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969); United States ex rel. Foose v. Rundle, 389 F.2d 54 (3d Cir.), cert. denied, 392 U.S. 914, 88 S.Ct. 2075, 20 L.Ed.2d 1372 (1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).

Since the arrest was lawful, the search of Dessus at the place of the arrest Nunez v. United States, 370 F. 2d 538 (5th Cir. 1967); United States ex rel. Jenkins v. Bookbinder, 291 F. Supp. 87 (E.D.Pa.1968) and at the police station were lawful. Cotton v. United States, supra. Use of evidence thus obtained violated none of relator's constitutional rights.

2. Line-up.

When the victims were taken to the hospital, the police arranged for Dessus, Burgess and another suspect to be brought to the hospital for identification. The police presented each suspect first to Natalie Tuchar and then to Lena Alexandroff. Relator contends that it was error to admit the identification by Lena Alexandroff into evidence for two reasons: (a) her statements were hearsay; and (b) the identification was made while relator was without counsel, and hence violated his Sixth and Fourteenth Amendment rights.

The first contention raises only a question of admissibility of evidence under state law, a matter not cognizable in this court on a petition for writ of habeas corpus. See United States ex rel. Greer v. Pate, 393 F.2d 44 (7th Cir.), cert. denied, 393 U.S. 890, 89 S.Ct. 209, 21 L.Ed.2d 168 (1968), p. 422 infra.

As for the contention that he was denied rights guaranteed by the Sixth Amendment, relator relies upon United States v. Wade, 388 U.S. 218, 219, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Neither of these cases is retroactive, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), consequently Dessus is entitled to relief only if the confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, supra at 302, 87 S.Ct. at 1972. A single line-up identification, particularly where there is imminent danger of the victim's death, has been held not to be a violation of due process Stovall v. Denno, supra absent the existence of "other circumstances indicating a likelihood of misidentification."⁴ See United States v. Shannon, 424 F.2d 476 (3d Cir., 1970). The facts in the instant case are remarkably similar to those surrounding the line-up which was found not to violate due process in Stovall. I conclude, therefore, that the identification of Dessus by Lena Alexandroff did not result from a confrontation so suggestive as to constitute a denial of due process.

3. Right to Fair Trial and Due Process.

(a) Denial of Funds to Hire a Psychologist.

Prior to trial, Dessus' counsel moved pursuant to 19 P.S. § 784⁵ for funds to engage the services of a psychiatrist and a psychologist. The court granted the request for a psychiatrist, but denied it as to a psychologist. Relator now alleges that the denial of his motion for funds to retain a psychologist deprived him of the effective assistance of counsel and due process because psychological tests were necessary to his insanity defense. To reinforce his position, relator notes that the Commonwealth was permitted to introduce evidence of psychological tests administered by its psychologist.

An accused is entitled, at least in capital cases, to the assistance of...