United States v. Myers, Misc. No. 2790.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Ralph J. Althouse, Jr., Asst. Dist. Atty., Reading, Pa., for respondent
• Citation: 276 F. Supp. 748
• Parties: UNITED STATES of America ex rel. Edwin W. GOCKLEY v. David N. MYERS, Superintendent.
• Docket Number: Misc. No. 2790.
• Decision Date: 28 November 1967

276 F. Supp. 748

UNITED STATES of America ex rel. Edwin W. GOCKLEY
v.
David N. MYERS, Superintendent.

Misc. No. 2790.

United States District Court E. D. Pennsylvania.

November 28, 1967.

276 F. Supp. 749

H. Robert Fiebach, Philadelphia, Pa., for relator.

Ralph J. Althouse, Jr., Asst. Dist. Atty., Reading, Pa., for respondent.

OPINION

LUONGO, District Judge.

Edwin W. Gockley was convicted of murder in the second degree and sentenced by the state court to not less than 10 nor more than 20 years imprisonment. The Pennsylvania Supreme Court affirmed the conviction. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963). After exhausting state remedies, Gockley filed the instant habeas corpus petition on August 7, 1964, in which he charged that his constitutional rights had been violated by the use, at his trial, of evidence obtained by an illegal search and seizure, and by the admission of involuntary statements obtained from him by the police.

On October 12, 1964, the petition was denied without hearing. As to the search and seizure charge, this court held that the record amply supported the state court's finding that relator had consented to the search conducted by the police. As for the statements, relator's pro se

276 F. Supp. 750

allegations were interpreted as complaining of the state court's use of inconsistent statements as evidence of guilt. So interpreted, it was held that the petition presented a question of state law and did not raise a constitutional issue for habeas corpus, citing United States ex rel. Saunders v. Myers, 276 F.2d 790 (3d Cir. 1960). United States ex rel. Gockley v. Myers, October 12, 1964 (unreported). On appeal, the disposition of the search and seizure question was upheld, but the judgment denying the writ was vacated on the ground that the petition had clearly raised the issue of the use of involuntary statements. The matter was remanded to this court to determine whether there had been an effective waiver by Gockley of any right to have the statements excluded and, if there was no waiver, "to consider and decide whether due process of law was denied by the use of this evidence against the accused." United States ex rel. Gockley v. Myers, 378 F.2d 398, 401 (3d Cir. 1967)

The mandated evidentiary hearing has been held. From that hearing and from the state court records, these facts emerge:

In the spring of 1961, Gockley became the principal figure in an investigation of the disappearance of two persons, Mabel Klein and Clement Smith. The police questioned Gockley periodically over a span of several months and, on November 17, 1961, at approximately 6:00 p. m. arrested him. The police questioned him for several hours that evening, and for two hours in the morning and two hours more in the evening of November 18, 1961. On the morning of the 19th, Gockley made a statement to the District Attorney of Berks County implicating himself in the death of Clement Smith. After checking out the details of the statement, the police concluded that Gockley had not been completely truthful. On December 9, 1961, almost three weeks after Gockley made his initial statement, the police confronted him with the discrepancies revealed by their investigation whereupon Gockley made another statement inconsistent in some material respects with the one made on November 19th. During all the period from November 17 to December 9, Gockley was in custody. He was not represented by nor had he communicated with counsel. On December 12, 1961, the Berks County court appointed Messrs. Binder and Havelow to represent Gockley.

At the trial, in response to a specific question by the court, counsel (Binder) stated that he had no objection to the introduction of the statement of November 19, 1961. Objection was made to the admission of the second and inconsistent statement and to the jury's being permitted to consider the inconsistent statements as evidence of guilt.

Waiver of the right to exclude involuntary statements.

The Commonwealth contends that Gockley's failure to object to the admissibility of the statements on the grounds of involuntariness constituted an effective waiver of the right to mount a collateral attack on the use of his statements. There are two parts to the Commonwealth's waiver argument. The first part is based on the state contemporaneous objection requirement. Because of several recent Pennsylvania decisions, we need not decide whether Gockley's procedural default precludes him from asserting his federal constitutional claim. In Commonwealth v. Snyder, 427 Pa. 83, 88, 233 A.2d 530, 533 (1967), the Pennsylvania Supreme Court stated in footnote 2:

"To meet our contemporaneous objection requirement it is not necessary that the objection be made immediately before the attempted admission of the challenged confession. For example, in Jackson v. Denno, supra 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 the trial court was informed that the voluntariness of the confession was in issue through attack upon the confession

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