United States ex rel. Boelter v. Cuyler

• Decision Date: 29 February 1980
• Docket Number: Civ. A. No. 75-3611.
• Parties: UNITED STATES of America ex rel. Ronald X. BOELTER v. Julius T. CUYLER, Superintendent at State Correctional Institution, Graterford and District Attorney of Philadelphia County.
• Court: U.S. District Court — Eastern District of Pennsylvania

486 F. Supp. 1141

UNITED STATES of America ex rel. Ronald X. BOELTER v. Julius T. CUYLER, Superintendent at State Correctional Institution, Graterford and District Attorney of Philadelphia County.

Civ. A. No. 75-3611.

United States District Court, E. D. Pennsylvania.

February 29, 1980.

Joseph A. Torregrossa, Morgan, Lewis & Bockius, Philadelphia, Pa., for plaintiff.

Michael F. Henry, Asst. Dist. Atty., Chief, Motions Division, Philadelphia, Pa., for defendant.

OPINION

EDWARD R. BECKER, District Judge.

I. PRELIMINARY STATEMENT

This decision marks the end of this Court's lengthy consideration of the habeas corpus petition filed by relator, Ronald X. Boelter, in 1975. The history of this case, however, begins on January 4, 1971, when a group of eight men, posing as customers, entered Dubrow's furniture store in Philadelphia, singly and in pairs. After all eight were in the store, they pulled guns and announced a robbery. In the course of the robbery, the employees were tied up and terrorized; several were kicked or pistolwhipped. The robbers also poured gasoline and set fires in several places throughout the store; one of these fires was set directly on one of the employees. Three of the employees were shot, one of them fatally.

Four days later, on January 8, 1971, Boelter was arrested in connection with the crime. After a series of delays which will be described later in this opinion, Boelter was brought to trial in February, 1973. A mistrial was declared when the jury was unable to agree on a verdict, and at his second trial in July, 1973, Boelter was convicted of first-degree murder. Relator's post-trial motions, which raised the same eight grounds as are raised in his habeas corpus petition,¹ were denied, and his conviction and sentence of life imprisonment were affirmed by the Pennsylvania Supreme Court, three members voting to remand for an evidentiary hearing on whether Boelter had been denied a speedy trial. Commonwealth v. Boelter, 463 Pa. 162, 344 A.2d 475 (1975). He then petitioned for federal habeas corpus relief. In a Memorandum and Order issued October 6, 1976, we approved the recommendation of United States Magistrate Edwin E. Naythons that we reject seven of the eight grounds, and appointed counsel to brief and argue on Boelter's behalf his claim that he had been denied the constitutionally guaranteed right to confront adverse witnesses. Subsequently, relator's counsel persuaded us to allow briefing and argument of the speedy trial issue as well. Because an evidentiary hearing was necessary for the proper resolution of these two claims, a three-day hearing was held. For the reasons that follow, we now decide those issues adversely to relator.²

II. THE SPEEDY TRIAL CLAIM

A. FINDINGS OF FACT

On January 8, 1971, four days after the gruesome episode at Dubrow's Furniture Store, relator and several other suspects were arrested by the Philadelphia police. Relator gave a statement to the police in which he alleged that he was at home at the time of the Dubrow's robbery—2:00 p. m.— and that several persons, including his mother, his sister, and one Daniel Flood— who, relator said was about 40 years old and lived on the third floor of the house in which relator and his family also lived— could verify his whereabouts at the critical time.

That evening lineups were held at the Philadelphia Police Administration Building. Relator was represented at the lineup by Nino V. Tinari, Esquire. There were four lineups, each of which contained one suspect and five other persons; each was viewed by a number of witnesses to the Dubrow's incident. Several of the witnesses identified relator, with varying degrees of certainty. See Findings of Fact infra on relator's confrontation claim.

Also that evening of January 8, two Philadelphia detectives went to relator's home on Gratz Street in search of the asserted alibi witnesses. An interview sheet made at the time indicates that one Ronald Flood, age 21 years, and living on the third floor of relator's house, told the detectives that on the crucial day he remembers that relator left the house at about 9:00 a. m.—not at 4:00 p. m. as relator alleged. The detective who testified at the habeas corpus hearing before this Court had no independent recollection of Mr. Flood, and testified that, at this late date, he would not know if the age and first name on the interview sheet were at variance with Mr. Flood's true age and name.

We make no finding as to the exact age or first name of Mr. Flood, because no such finding is necessary. We do find, however, that the Mr. Flood interviewed by the Philadelphia police was the only Mr. Flood then residing at the Gratz Street address, for there is no evidence that there was more than one person by that name living there. We further find that this Mr. Flood, whose account of the critical day's events as given to the police did not corroborate relator's asserted alibi, moved from the Gratz Street house approximately one month after relator's arrest and that neither the district attorney nor the defense counsel were able subsequently to locate him.

Relator's preliminary hearing was originally scheduled for January 13, 1971, but was continued until January 27 at the request of Mr. Tinari. Mr. Tinari at this time was privately retained to represent relator as well as relator's codefendant, Edward Sistrunk. After the preliminary hearing, fee problems developed between Mr. Tinari and relator's family. These fee problems eventually resulted in Mr. Tinari's withdrawal as private counsel from relator's case—though not from that of Mr. Sistrunk. However, as is noted below, Mr. Tinari was thereafter appointed by the court to represent Boelter.

The first court listing in relator's case was March 29, 1971, in the homicide calendar room at Philadelphia City Hall. We pause at this point in our chronicle to provide some background in the operations of the Philadelphia Court of Common Pleas circa 1971-72 as they relate to homicide cases. Homicide cases were segregated from all other felony matters and had their own calendar. Approximately six to eight judges were assigned to the Homicide Division, and these judges heard nothing but homicides. The system disposed of about 500 homicide cases in a year, but ran a continual backlog of between 300 and 350 cases. Of these backlogged cases, about 200 were jury cases, the others being pleas or waivers of jury trials. At any one time no more than five homicide judges were available to hear jury trials. One homicide judge was in charge of the calendar room and did not actually conduct trials and two of the eight homicide judges would hear "waiver" cases. All homicide cases were initially listed for hearing before the calendar judge. A listing before the calendar judge was not a trial date, but was a conference designed to determine the status of the case and to attempt to resolve any problems that existed in bringing the case to trial. Thus, relator's March 29 listing was not a trial date.

Homicide trials averaged about three weeks in length, inclusive of pending motions and jury selection, but attorney conflicts, illnesses, etc. made it impossible for any judge to actually average one complete trial every three weeks. There was a general policy to try older cases before newer ones, but the vagaries of courtroom and attorney availability made the policy an unattained goal. These scheduling difficulties meant that the 200 or so cases backed up in the jury pool were commonly backlogged anywhere from one to three years.

From this jury pool of about 200 or more cases, cases would move into the ready pool, when both the defense attorney and the Commonwealth indicated they were ready to proceed. The ready pool usually consisted of between 20 and 30 cases, and ideally (if not really) would consist of the 20 or 30 oldest cases in the jury pool. The ready pool signified to attorneys that the case could come up on two weeks notice. This did not mean that the case would come up in two weeks, but that counsel were to be prepared to go to trial two weeks from notification. As a further refinement, two or three cases out of the ready pool would be backed up on the calendar of each homicide jury trial judge. Thus, at least in theory, an attorney could follow the progress of the one or two cases ahead in the courtroom to which his case was assigned and gauge when his case was likely to come up. Of course, sudden guilty pleas or other surprises, compounded by attorney conflicts, could wreak havoc with the schedule.³

At the March 29 calendar listing of relator's case, the case was continued until May 24, 1971. At our habeas corpus hearing, Mr. Tinari testified that this continuance was granted at the request of the Commonwealth and over his objection. Edward Rendell, Esquire, however, now the District Attorney of Philadelphia, and in 1971 and 1972 Assistant District Attorney assigned to the homicide calendar room, testified that Mr. Tinari requested the continuance in order to try to work out his ongoing fee problems with relator's family. We credit Mr. Rendell's testimony, which was supported by that of Edward Attanesio, an employee of the Philadelphia Court of Common Pleas. Mr. Attanesio's job in 1971 and 1972 was to make records of listings in the homicide calendar room to provide a short running history of each case. Mr. Attanesio's records of the March 29, 1971 listing show that the case was continued to May 24 "at request of counsel." Mr. Attanesio testified that "counsel" meant defense counsel; he referred in his records to the District Attorney as "district attorney," not as "counsel." We thus find that the March 29 continuance was at the request of Mr. Tinari.

At the May 24, 1971 listing, also in the homicide calendar room, the case was again continued, this time to July 12. Mr. Tinari again testified that the Commonwealth asked for the delay because it wanted to proceed first against relator's co-d...