United States ex rel. Bishop v. Rundle

• Decision Date: 05 February 1970
• Docket Number: Misc. No. 3826.
• Citation: 309 F. Supp. 312
• Parties: UNITED STATES of America ex rel. Charles BISHOP, H-4971, Petitioner, v. A. T. RUNDLE, Supt., Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

309 F. Supp. 312

UNITED STATES of America ex rel. Charles BISHOP, H-4971, Petitioner, v. A. T. RUNDLE, Supt., Respondent.

Misc. No. 3826.

United States District Court, E. D. Pennsylvania.

February 5, 1970.

Mary Bell Hammerman, Philadelphia, Pa., for petitioner.

Roger F. Cox, Asst. Dist. Atty., Philadelphia, Pa., for respondent.

OPINION AND ORDER

FULLAM, District Judge.

Relator, Charles Bishop, was indicted and convicted by jury of the murder of Frances Burrell, and is serving a life sentence.

The principal item of evidence introduced by the Commonwealth against Bishop at his 1963 trial was a written statement which, though partly exculpatory in that relator denied intending to kill the victim, and contended that the sexual act which preceded the killing was consensual, nevertheless furnished the crucial admission that the relator did have sexual relations with the victim and did strangle her. Since the trial preceded Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R. 3d 1205 (1964), the statement was received in evidence over objection, the jury being instructed to disregard the statement entirely unless convinced of its voluntariness.

After the trial, the Commonwealth recognized that Jackson v. Denno, supra, and Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964) mandated a separate determination of voluntariness. At the hearing of this issue, both sides were content to rely upon the record, without additional evidence, and the trial judge forthwith declared the confession to have been voluntary. In due course, an appeal was taken to the Supreme Court of Pennsylvania, and the conviction was affirmed. Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661, cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967). Therefore, relator has exhausted his state remedies as to those contentions raised before the Supreme Court of Pennsylvania. United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir. 1969).

In the present habeas corpus petition, relator asserts four grounds for relief:

1. His arrest was illegal, and therefore his subsequent confession was constitutionally inadmissible against him.

2. His confession was not voluntarily given.

3. One of the Commonwealth's experts perjured herself concerning her qualifications.

4. Illegally seized real evidence was admitted against him at trial.

The Legality of the Arrest

Relator claims that his arrest violated his Fourth Amendment rights because the arresting officers had neither a valid arrest warrant nor probable cause to arrest, and that his written confession was therefore inadmissible at his trial. The Supreme Court of Pennsylvania did not resolve the legality of the arrest, but concluded that even if the arrest were held to be illegal, such illegality would not render the statement constitutionally inadmissible. I have some doubt as to the soundness of that holding, in view of such cases as Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963); Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1966); I therefore deem it necessary to consider whether the arrest was constitutionally valid. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1964); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

Two independent branches of the Philadelphia Police Department were working on the Burrell case simultaneously, the Homicide Division, and the Special Investigation Squad (SIS). On April 6, 1963, the day the relator was picked up for questioning, the SIS knew that the decedent had been receiving telephone calls from a person named "Peanut", that no such calls had been received at the family residence after her disappearance, and that Charles Bishop was one of several persons in the area who was nicknamed "Peanut." The Commonwealth admits that this information did not constitute probable cause to arrest, but contends that no arrest was made when the police took the relator to the station house for questioning. Under all of the circumstances, I shall assume for present purposes that the petitioner was under arrest when he was first picked up. However, no directly incriminating statements were made while the relator was in the custody of the SIS.

Shortly after noon the same day, the Homicide Division requested the SIS to bring Bishop to its headquarters. When Sergeant Kennedy of the Homicide Squad made this request he had reason to believe, on the basis of an autopsy report, that the time of death was approximately 9:30 p.m. on March 28, 1963 (habeas corpus notes of testimony HNT 82); that a witness had seen the decedent with a young Negro male on the night of March 28th at approximately 9:00 o'clock p.m.; and that the witness had given a description of this youth to Detective Tyler (HNT 90). Sergeant Kennedy also knew of the "Peanut" telephone calls referred to above.

When Bishop was brought to the Homicide Division, Detective Tyler determined that Bishop answered the description of the youth who was with the decedent on the night of her death (HNT 68). At the evidentiary hearing held in this Court, the witness who spoke with Detective Tyler was produced, and confirmed the fact that she had given Detective Tyler a description of the boy who was with the decedent on the night of her death (HNT 114-20).

After a short period of time in the custody of the Homicide Division, Mr. Bishop made his first inculpatory statements, and within a few hours the written statement was transcribed and signed.

Thus the issue is whether or not the information known to the Homicide Division was sufficient to constitute probable cause. In the words of Mr. Justice Clark,

"* * * Probable cause * * * exists `where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.'" Ker v. California, supra, at 34, 83 S.Ct. at 1630.

In the present case, there was ample evidence that Miss Burrell had been murdered by someone, at about 9:30 p. m. on March 28, 1963. The real question is whether the police had enough information to lead a reasonable person to believe that the relator was the perpetrator of the crime. This, in turn, involves an evaluation of the reliability of the information known to the police, and, assuming reliability, its cumulative effect.

Under the circumstances, it would seem entirely reasonable to accept at face value the information given by the victim's family concerning the "Peanut" telephone calls. The fact that the relator bore that nickname seems to have been a matter of common knowledge in the neighborhood, derived from several sources. The crucial information, that a person resembling the relator was with the victim shortly before her death, came from a disinterested and seemingly responsible storekeeper in the neighborhood. I therefore conclude that the police could reasonably feel free to rely upon the information at hand. And, while perhaps the matter is not altogether free from doubt, I have concluded that the totality of this information was adequate to warrant a reasonable man in believing that the relator was probably the culprit. Cf. Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1968); United States v. Dento, 382 F.2d 361 (3rd Cir.1967); Trimble v. United States, 125 U.S.App. D.C. 173, 369 F.2d 950 (1966).

The question remains whether the illegality of the original arrest (as distinguished from the Homicide Division custody) should be deemed to have contaminated the subsequent acquisition of information constituting probable cause. It is clear that evidence which flows from an illegal arrest cannot be used to cure the original illegality. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). In our case, however, the original illegal arrest in no way contributed to the police knowledge constituting probable cause. It is of course true that the relator's physical presence pursuant to the unlawful arrest made it possible for the police to match his description more promptly and conveniently than would otherwise have been the case. But it is clear that relator's presence in custody contributed neither to the knowledge of the witness nor to the accuracy of, or occasion for, her describing him.

The Admissibility of Relator's Confession

Under Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), neither Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) nor Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) is to be given retroactive application. Since relator's trial was completed on August 5, 1963, the constitutional admissibility of his confession is determined by the pre-Escobedo-Miranda cases applying the Fourteenth Amendment standard of due process.

The constitutional prerequisite to admissibility is that a confession be "voluntary." The late Mr. Justice Frankfurter accurately described the task of a court in making this determination:

"The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, `phenomenological' occurrences and events surrounding the confession. Second, because the concept of `voluntariness' is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, `psychological' fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also,

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