United States ex rel. Tyrrell v. Jeffes

• Decision Date: 16 September 1976
• Docket Number: Civ. A. No. 74-1830.
• Citation: 420 F. Supp. 256
• Parties: UNITED STATES of America ex rel. David TYRRELL v. Glen R. JEFFES.
• Court: U.S. District Court — Eastern District of Pennsylvania

420 F. Supp. 256

UNITED STATES of America ex rel. David TYRRELL v. Glen R. JEFFES.

Civ. A. No. 74-1830.

United States District Court, E. D. Pennsylvania.

September 16, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter J. Collins, Jr., Philadelphia, Pa., for plaintiff.

John G. Siegle, Asst. Dist. Atty., Stephen J. McEwen, Jr., Dist. Atty. of Delaware County, Media, Pa., for defendant.

OPINION AND ORDER

FOGEL, District Judge.

Relator, David Tyrrell (Tyrrell) has filed his petitioner for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He has been, and continues to be confined in the State Correctional institution at Graterford (Graterford), where he is serving a sentence of twelve and one-half to twenty-five years, imposed by the Court of Common Pleas for Delaware County, Pennsylvania, after his conviction by a jury on October 9, 1970.¹ Disposition of this matter calls for an analysis of the ensuing issues which we will discuss.

I. JURISDICTION AND VENUE

Tyrrell alleged several bases for the granting of the writ. Some of these were dropped prior to, or at the evidentiary hearing which we held. Two principal contentions remain: (1) matters relating to the alleged constitutional infirmities in relator's identification, and (2) points relative to his allegations that his court-appointed counsel was incompetent, both in his handling of the pretrial proceedings and in the conduct of the trial itself. (See Revised Requests for Findings of Fact and Conclusions of Law in Behalf of Relator, at 2-3). Our review of the state court record which includes the opinion of the state court trial judge on post-trial motions, briefs of the parties (pro se by relator), the per curiam affirmance by the Superior Court of Pennsylvania, and the Pennsylvania Supreme Court's denial of the petition for allowance of appeal, satisfies us that every issue raised in the instant case by petitioner was raised in his direct appeals before the appellate courts of the Commonwealth. Accordingly, we find that petitioner has exhausted State remedies as required by 28 U.S.C. §§ 2254(b). This is true, even though relator failed to invoke collateral State procedures. Brown v. Allen, 344 U.S. 443, 448-49, n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969). Venue lies here; both the situs of the trial was, and the place of his detention is located in the Eastern District.

II. HISTORY OF THESE PROCEEDINGS

Mr. Tyrrell filed his petition pro se, and in forma pauperis. After receipt of the recommendation by the United States Magistrate, we reviewed the file, determined that an evidentiary hearing was required, and appointed counsel to represent relator (Order of November 27, 1974). Time frames for (1) completion or discovery, (2) submissions of briefs, (3) a final pretrial order, and (4) the final pretrial conference were established. The evidentiary hearing was conducted over the course of several days in order to permit relator's counsel to conduct further discovery with respect to matters raised during the course of that hearing. We have reviewed the record of the proceedings before us, the state court records, and all briefs and memoranda submitted by the parties. We conclude, on the basis of the entire record, that relator's petition is without merit; accordingly, the writ of habeas corpus will be denied.

Our reasons follow:

III. FACTS RELATING TO THE CRIMINAL CONDUCT CHARGES

A brief recitation of the incidents which led to the charges is necessary in order to provide the proper perspective for our determination of the factual issues which are critical in reaching an ultimate decision. In the early hours of the morning of December 20, 1969, two men, one black and one white, robbed the Media Motor Lodge, near the intersection of Baltimore Pike and Providence road in Media, Delaware County, Pennsylvania. While the robbers were inside the Lodge, Corporal George Weaver of the Media Police Department, observed an empty 1958 Chevrolet with its engine running, bearing Pennsylvania license registration OM 1307, at rest in the Lodge parking lot. A radio check was made, without any conclusive results. Thereafter, Corporal Weaver tried to locate the night clerk (who could not be found, since he was bound and gagged in the basement), and checked for signs of illegal entry. As he approached a stairway leading from the carport to a basement entrance to the ballroom, he observed two men, one black and one white, exiting from the door located at the bottom of the stair. The two continued up the stairs, and passed the police officer, without saying a word or responding to his questions. Then the white man wheeled about and shot Weaver once below the left ear. The man who shot Weaver ran to the vehicle, entered it, and headed East on Baltimore Pike, while the other individual fled into the bushes behind the Lodge. Weaver, bleeding but conscious, went to his patrol car, radioed the message that he had been shot, and stated that his assailant had fled East on Baltimore Pike in the same vehicle which had been the subject of his radio inquiry. However, the gravity of his injuries prevented him from pursuing the Chevrolet.

Officers from surrounding communities were dispatched to the Lodge to assist Weaver, and to stake out the area. One of them, Officer Robert West, spotted a vehicle which fit the radioed description, and gave chase. Relator was the driver of that automobile. Officer West stated at the trial that the Chevrolet stopped near an intersection, presumably in response to West's flashers; he left his patrol car and started to walk to the driver's door, when the suspect vehicle began to move. He thereupon fired three rounds from his shotgun into the Chevrolet, which then continued slowly to the left, across Baltimore Pike, and finally came to rest on the apron of a Mobil gas station on the north side of the Pike. Officer West was thereafter joined by other officers, who then approached Tyrrell. Relator grabbed for the revolver of one of the officers, and a short but violent scuffle ensued. Several blows were landed before Mr. Tyrrell was subdued. He was strapped to a stretcher to prevent further resistance, and put in a patrol wagon for the trip to the Media police station. Immediately upon arriving there, Tyrrell was sent to Riddle Memorial Hospital, so that Corporal Weaver, who had been taken there for treatment, could view him. He was identified by Weaver in the one-to-one showing, after which he was returned to the police station. He was later taken back to the hospital, where he was confined for treatment of injuries received in the scuffle with the police.

Some time later, after Weaver left the hospital, but before trial, Chief Bruton of the Media Police showed Weaver several photographs of Tyrrell taken from him on the morning of his arrest. It is undisputed that neither Tyrrell nor his counsel, David Auerbach, Esq., of the Public Defender's Office in Delaware County, were present on that occasion.

Motions to suppress the photographs, the show-up identification, and all of Weaver's identification, including in-court statements, were filed on Tyrrell's behalf. The photographs were suppressed on the basis of the impropriety of the means by which they were obtained, but Corporal Weaver was permitted to testify in court as to his independent identification of Tyrell. A three-day trial before a jury resulted in guilty verdicts on fourteen counts charging, inter alia, burglary, larceny, robbery, aggravated and other assaults upon civilians, assault and battery upon police, and two weapons charges. He was acquitted of assault with intent to kill.

There were two robbers at the Media Motor Lodge, but only Tyrrell was charged and tried. Evidence was presented at the trial which established that one Luther Jones had been picked up near the Motor Lodge at approximately the same time Relator was seized, but had died of a heart attack just after the start of his interrogation by the police.

IV. THE ISSUE OF IDENTIFICATION

Relator contends that the hospital identification was improper under the circumstances, and deprived him of his due process rights, because it was suggestive, conducted in the absence of counsel, post-arrest, and generally improper. We cannot agree.

A. The Controlling Legal Precepts

A trio of Supreme Court cases have established the guidelines which govern lineup and identification procedures. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In response to the dangers to the fact-finding process which were generated by highly suggestive lineups, the Court in Wade and Gilbert wrote a prospective per se rule—a lineup identification at which the accused was present without counsel would not be admitted into evidence. Wade, supra, 388 U.S. 237, 87 S.Ct. 1926. However, while the circumstance of the identification itself would be inadmissable, the witness who actually identified the defendant would in the proper case, be permitted to testify as to the fact of that identity at the trial. The test of propriety was that adopted previously in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which also dealt with the question of admissibility of potentially tainted evidence. In Wong Sun, the court held that the government must show by clear and convincing evidence that the in-court identification had an independent basis separate and apart from the improper lineup identification. Wade, supra, 388 U.S. at 240-41, 87 S.Ct. 1951. Among the factors to be considered in coming to a determination are: (1) the witness' prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description given to police by the...