United States ex rel. Bennett v. Rundle

• Decision Date: 05 December 1969
• Docket Number: No. 17407.,17407.
• Parties: UNITED STATES of America ex rel. Edward BENNETT No. H-6720, Appellant, v. Alfred T. RUNDLE, Warden of Eastern Correctional Institute, Graterford, Pa.
• Court: U.S. Court of Appeals — Third Circuit

419 F.2d 599 (1969)

UNITED STATES of America ex rel. Edward BENNETT No. H-6720, Appellant, v. Alfred T. RUNDLE, Warden of Eastern Correctional Institute, Graterford, Pa.

No. 17407.

United States Court of Appeals Third Circuit.

Reargued November 5, 1969.

Decided December 5, 1969.

Rehearing Denied January 14, 1970.

COPYRIGHT MATERIAL OMITTED

David Kanner, Kanner, Stein, Feinberg & Barol, Philadelphia, Pa., for appellant.

James D. Crawford, Asst. Dist. Atty., Philadelphia, Pa. (Samuel T. Swansen, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.

Reargued before HASTIE, Chief Judge, and KALODNER, FREEDMAN, SEITZ, ALDISERT, STAHL and ADAMS, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

Relator was found guilty in a Pennsylvania court of second degree murder, aggravated robbery and conspiracy and was sentenced to imprisonment for consecutive terms aggregating not less than 21 nor more than 42 years. The District Court denied his petition for habeas corpus, and his appeal, on which we granted a certificate of probable cause, is now before us.

It is clear that relator has exhausted his state remedies. He appealed from his conviction to the Supreme Court of Pennsylvania and there made the contentions which he has presented to the District Court. The Supreme Court of Pennsylvania affirmed his conviction in a per curiam opinion, Eagen and Roberts, JJ., dissenting. Commonwealth v. Bennett, 424 Pa. 650, 227 A. 2d 823, cert. denied 389 U.S. 863, 88 S. Ct. 122, 19 L.Ed.2d 132 (1967). Since the claims now presented to us were made on direct appeal there has been an exhaustion of state remedies under 28 U.S.C. § 2254, even if relator theoretically has the right to seek collateral relief in the state courts on the same contentions. See Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3 Cir. 1969); United States ex rel. Howard v. Russell, 405 F.2d 169, 171 (3 Cir. 1969). In fact, however, under Pennsylvania's Post-Conviction Hearing Act relator is not eligible for collateral relief because the State Supreme Court already has ruled on the issues presented.¹ The District Court therefore was correct in reaching the merits of the petition.

Relator makes three claims:

(1) His trial was barred by a Pennsylvania statute which requires that an imprisoned defendant who requests the final disposition of an outstanding indictment must be tried within 180 days;

(2) His confession should not have been introduced into evidence because it was involuntary and was obtained in violation of his right to counsel; and

(3) His right to a public trial was violated by the trial judge's exclusion of all persons other than relator, the lawyers, the witnesses and court officers from the portion of the trial at which a Jackson v. Denno² hearing was held.

I.

Relator's contention that his state trial was held too late is founded on the Act of June 28, 1957, P.L. 428,³ providing for the disposition of detainers lodged against prisoners. The statute provides that whenever an untried indictment is pending in the Commonwealth against a person imprisoned in a correctional institution of Pennsylvania, "he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the District Attorney of the County in which the indictment is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * * *. The request of the prisoner shall be accompanied by a certificate of the warden * * * or other official having custody of the prisoner," giving the terms of his commitment, the time served and to be served and certain other relevant facts.⁴ The prisoner's demand for trial "shall be given or sent by the prisoner to the warden * * * or other official having custody of him, who shall promptly forward it (together with the certificate) to the appropriate District Attorney and the court * * *."⁵ The Act then provides: "In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."⁶

Relator delivered his request for trial to the prison authorities on Friday, March 26, 1965. It was forwarded and delivered to the District Attorney on Monday, March 29, 1965.⁷ Relator's trial began on September 23, 1965, which was 181 days after he delivered his request to the prison authorities but 178 days from the time it was delivered to the District Attorney. The state trial court held that the 180 day period was to be computed from the date of the delivery of the notice to the District Attorney. The Pennsylvania Supreme Court's per curiam affirmance implicitly approved this conclusion. Relator's claim on this interesting question of statutory construction amounts to no more than a disagreement with the state courts' resolution of a state law problem. It does not present a federal question, for there is no claim that relator is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). We therefore would not have authority to grant relief even if we disagreed with the state courts' construction of the statute.

Relator belatedly seeks to place a federal cast on his claim by asserting on appeal that the failure to try him within 180 days from the delivery of his notice to the warden amounted to a denial of his right to a "speedy trial" guaranteed him by the Sixth Amendment as incorporated into the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). However, Pennsylvania's statute providing for a 180 day period does not create a constitutional rule of thumb which measures the time boundary for a "speedy trial." In the first place, the statute itself contains a provision that for good cause the court may grant any necessary or reasonable continuance,⁸ and this, of course, would extend the 180 day period. Moreover, the 180 day period does not even begin to run until a prisoner elects to make the statutory request. In any event, whether the constitutional right to a speedy trial on an outstanding indictment has been violated depends on all the facts and circumstances of the individual case.⁹ It cannot be said, therefore, that the state courts' construction of the statute is so unreasonable that a federal court should interpose a contrary interpretation in order to enforce the speedy trial guarantee of the Sixth Amendment.

II.

Relator claims that the exclusion of all persons other than himself, the attorneys, the witnesses and court officials during the Jackson v. Denno hearing on his motion to suppress his confession denied him the right under the Sixth Amendment to a "public trial."¹⁰

At the outset it must be acknowledged that in Gaines v. Washington, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793 (1928), the Supreme Court held that the public trial provision of the Sixth Amendment did not apply to state proceedings, although it did not decide the extent to which the due process provision of the Fourteenth Amendment would affect a demand for public trial in the state courts. Gaines has never been overruled explicitly,¹¹ but it is now clear that the provision is applicable to the states by virtue of the due process clause of the Fourteenth Amendment.¹² Indeed, the Supreme Court has recently held the companion "speedy trial" provision of the Sixth Amendment applicable to the states by incorporation into the Fourteenth Amendment.¹³

Holding as we do that the public trial requirement of the Sixth Amendment is applicable in state criminal proceedings, a number of problems must be considered. The first is whether, regardless of the merits, relator waived his right to claim the constitutional protection. The second is whether the Jackson v. Denno hearing falls within the constitutional guarantee as part of a criminal "trial." The third is whether the right to a public trial is violated where the exclusion of the public is the result of an effort to prevent the prejudice to a defendant which would result from public knowledge of the existence of his confession before it has been determined to be legally admissible against him. The fourth is whether a defendant must show specific prejudice resulting from the denial of a public trial.

1. We turn first to the question of waiver. Here it is necessary to review the state court proceedings which dealt with relator's motion to suppress his confession.

Relator's case originally was listed for trial on September 17, 1965, but when he filed a motion to suppress the confession, the trial was postponed pending a decision on the motion. On September 22, 1965, a pre-trial hearing was held on the motion to suppress. After testimony had been presented and the judge announced that he would take the motion under advisement, relator withdrew the motion against the advice of counsel because relator feared that otherwise the trial would be postponed pending decision on the motion and this might constitute a waiver of his claim under the "180 day rule."

On the next day, September 23, 1965, the case was called for trial before another judge. After selection of the jury was completed on October 1, the trial judge, apparently after discussion, permitted relator to renew the motion to suppress despite its withdrawal on September 22. The jury was sent out and the courtroom was cleared so that the only persons present were the relator, his counsel, the Assistant District Attorney, the witnesses and the court officers. At the proceeding on September 22, the ...