United States v. Brierly

• Citation: 387 F.2d 597
• Decision Date: 29 December 1967
• Docket Number: No. 16763.,16763.
• Parties: UNITED STATES of America ex rel. Ralph STAINO, Jr., H-4329 v. Joseph R. BRIERLY, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania 19130, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

387 F.2d 597 (1967)

UNITED STATES of America ex rel. Ralph STAINO, Jr., H-4329 v. Joseph R. BRIERLY, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania 19130, Appellant.

No. 16763.

United States Court of Appeals Third Circuit.

Argued November 22, 1967.

Decided December 29, 1967.

COPYRIGHT MATERIAL OMITTED

William D. Hutchinson, Asst. Dist. Atty., County of Schuylkill, Pottsville, Pa. (R. B. Russell, Dist. Atty., Pottsville, Pa., on the brief), for appellant.

John Patrick Walsh, Philadelphia, Pa. (David N. Savitt, Philadelphia, Pa., on the brief), for appellee.

Before HASTIE, FREEDMAN and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

On this appeal by the Commonwealth of Pennsylvania from an order of a district court granting habeas corpus to Ralph Staino, a state prisoner serving a term for burglary and larceny, we consider whether the procedures, including the use of a so-called "tacit admission", employed by the state in obtaining the conviction deprived Staino of his liberty without due process of law.

The crime charged was a burglary in Pottsville, Schuylkill County, Pennsylvania. Staino lived and worked in Philadelphia. By prearrangement of the police, Staino was arrested about 1 o'clock Sunday morning at the Philadelphia night club where he worked. He was then placed in a police car and carried some 50 miles to Reading Barracks, a state police installation in Berks County. There at about 4 A.M. he was "interrogated" by a high ranking Philadelphia police officer.

The "interrogation" was brief, beginning with a recital to the prisoner that he and alleged confederates were under arrest for the Pottsville burglary, that he did not have to make a statement and that, if he did, anything he said would be used against him at his trial. Immediately after this admonition, the police officer addressed an accusatory statement to Staino describing the manner in which the burglary was accomplished and charging him with being the owner and driver of the car which carried the thieves to and from the scene of the crime and the recipient of part of the stolen money. This recital was a paraphrase of a confession the police had obtained from an admitted participant in the crime. As he listened to this brief purported description of the crime, Staino repeatedly said, "I have nothing to say". This ended the "interrogation".

The officers then put Staino back in their car and drove to Schuylkill County, the scene of the crime, arriving there before 6 o'clock Sunday morning. Routine procedures followed and Staino was lodged in the Schuylkill County jail at Pottsville.

Sunday evening in the Pottsville jail there occurred a substantial repetition of the "interrogation" which had taken place early that morning in Berks County. However, on this second occasion, the interrogating officer read to Staino the actual text of the incriminating confession as made by his alleged confederate. Again Staino refused to comment upon the accusatory statement. This "interrogation" lasted no more than 5 minutes.

At Staino's trial a substantial part of the evidence against him was testimony of the interrogating officer telling the jury what was said and done during the two short periods of "interrogation". In addition, the document which was the confession of the alleged confederate was introduced into evidence and placed before the jury. Thereafter, the trial judge carefully instructed the jury on the theory of "tacit admission", explaining that the incriminating statement could be considered as probative against Staino only if they should find that an innocent person in Staino's position would have denied the accusation and that Staino's failure to do so reflected consciousness of guilt.

Staino's conviction was affirmed by the Superior Court, Commonwealth v. Staino, 1964, 204 Pa.Super. 319, 204 A.2d 664, and the Supreme Court of Pennsylvania refused allocatur. Staino then petitioned the Court of Common Pleas of Schuylkill County for habeas corpus. That court granted him a hearing and denied the petition. On appeal, an evenly divided Superior Court affirmed the denial of habeas corpus. Commonwealth ex rel. Staino v. Cavell, 1966, 207 Pa. Super. 274, 217 A.2d 824. The Supreme Court of Pennsylvania reviewed the controversy and, with two Justices dissenting, sustained the denial of habeas corpus. Commonwealth ex rel. Staino v. Cavell, 1967, 425 Pa. 365, 228 A.2d 647.

A reading of the cited opinions shows that the issues now presented on federal habeas corpus were considered by both Pennsylvania appellate courts and decided against the petitioner. Indeed, it is the petitioner's contention that, on the facts as found by the Pennsylvania courts, the legal analysis of the dissenting Pennsylvania judges is sound and establishes the correctness of the petitioner's claim that he has been denied due process of law. In these circumstances, the constitutional claim is ripe for adjudication on federal habeas corpus.

On the present record we find serious unfairness in the obtaining and proving of the prisoner's "tacit admissions".

We begin with the relevant, though not necessarily decisive observation, that one's normal response to hearing derogatory statements about himself is substantially inhibited by the very fact that he is under arrest on a criminal charge and is being questioned by police officers in an obvious effort to substantiate that charge. On such an occasion a prisoner is likely to be wary and cautious. The circumstances simply are not such as to evoke a spontaneous response to an accusatory...