United States v. Rundle

• Decision Date: 19 May 1967
• Docket Number: Misc. No. 3447.
• Parties: UNITED STATES of America ex rel. George L. SPEARS v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: U.S. District Court — Eastern District of Pennsylvania

268 F. Supp. 691

UNITED STATES of America ex rel. George L. SPEARS v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania.

Misc. No. 3447.

United States District Court E. D. Pennsylvania.

May 19, 1967.

COPYRIGHT MATERIAL OMITTED

John W. Packel, Asst. Voluntary Defender, Philadelphia, Pa., for relator.

Charles A. Haddad, Asst. Dist. Atty., Philadelphia, Pa., for respondent.

OPINION AND ORDER

JOHN W. LORD, Jr., District Judge.

This is a petition for writ of habeas corpus. Relator alleges that he received ineffective assistance of counsel (in both Indictments 1549 and 1555). He further contends that a confession was admitted into evidence against him without a proper determination of its voluntariness (as to Indictment 1549), and that a prior withdrawn guilty plea was admitted into evidence against him (as to Indictment 1555). We issued an order to show cause upon the respondent, and after a detailed consideration of the record and legal questions held an evidentiary hearing. Counsel was appointed to represent relator at the hearing. Briefs were submitted at the hearing, and supplemental briefs were later received. We have determined that the writ should issue.

The petition is concerned with two separate convictions, based on indictments charging relator with aggravated robbery. Relator waived jury trials on both indictments and the two trials were held within a short time of each other. Spears was sentenced for both on the same day. Because of the different problems involved with each conviction, we will consider them separately.

Preliminary to a discussion of the merits of the petition, we must dispose of two jurisdictional matters. Relator has exhausted his state remedies, 28 U.S.C.A. § 2254, by appeal to the Superior and Supreme Courts of Pennsylvania, on both convictions challenged here. The appeals were unsuccessful. The question has also presented itself as to the nature of relator's custody. It is clear that the writ is not available to test the legality of detention threatened in the future. Palumbo v. State of New Jersey, 334 F.2d 524, 526 (3rd Cir. 1964). Relator is presently serving the unexpired portion of a previous sentence imposed for a crime not included in this petition. He was paroled however and would have fulfilled the term of that sentence while on parole, but for the convictions on the two crimes forming the basis for this petition. Upon being convicted, relator was ordered to serve his "back-time" on the previous sentence before he would begin to serve the sentences for the present crimes. The convictions are a violation of parole, and therefore the cause of his present detention. 61 P.S. § 331.21a. Since relator's present custody was caused by the convictions which he alleges were unconstitutionally obtained, the writ can issue. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1940); United States of America ex rel. Gaito v. Maroney, 324 F. 2d 673 (3rd Cir. 1963). The merits of the issuance of the writ may now properly be considered.

BILL OF INDICTMENT NUMBER 1549

Relator was brought to trial in April, 1964 on indictment No. 1549 charging the aggravated robbery of a savings association. He was represented by counsel (whom he claims was ineffective) and jury trial was waived. The Commonwealth's first witness was the victim of the robbery, a teller at the savings association, who identified Spears and two other defendants as the robbers. The next witness was a police officer who read into evidence an incriminating statement made by the relator. No objection to the confession was made at this time. The Commonwealth then rested. Spears took the witness stand in his own behalf and testified that he was ill and had remained in his room from December 16, 1963 to January 3, 1964, and therefore could not have committed the robbery which took place on December 23, 1963. Spears contended that three witnesses, including his parole officer, could testify that he was so confined during this time. These witnesses were never called, although it seems that some effort was made to find them. Spears then testified that the statement which he signed was not a transcription of any question and answer period he had with the police. He claimed that it was already prepared by the police who had been looking for him prior to his arrest. When he learned that he was the subject of police inquiry he went to his apartment where he was living with a friend named Brown, and a woman. The woman told him that the police had been to the apartment looking for him shortly before his arrival. The police allegedly ransacked the apartment and finally left, taking Brown in custody and telling the woman that they would keep Brown in custody until Spears surrendered himself. Spears went directly to the police station where he was placed under arrest. He was asked to sign the statement, which he insists was already prepared, containing a narrative of the robbery and implicating two other defendants. He testified that he denied commission of any crime but was intimidated into signing the statement. At this point in the trial, the following colloquy took place:

"MR. ROSENWALD (District attorney): If your Honor pleases, he is not testifying. He is doing the work of his attorney. He is arguing the case.

"THE DEFENDANT (SPEARS):

My attorney, sir, has not had over ten hours to know about this case. I am being tried.

"THE COURT: We are going to try this case as the law provides. We cannot go on and on like a babbling brook.

"THE DEFENDANT: I consider what I'm saying has pertinence to the case.

"THE COURT: We are not going to argue with you. You will tell whether you were there, whether you were not there, whether you did it or whether you did not do it." (N.T. 4/21/64, pp. 67, 68)

The record contains no further reference to this question of the voluntariness of the confession. There was no ruling by the court. Relator was eventually found guilty.

Relator contends that this statement confessing guilt of the crime alleged in Bill No. 1549 was improperly received into evidence without any separate determination of the question of voluntariness. We agree. The trial preceded Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Therefore, the absence of a formal objection by relator's attorney in these circumstances cannot be considered a voluntary waiver, where in fact, the defendant personally repudiated the confession as soon as he was able. When relator took the witness stand a great deal of his testimony concerned this statement, and he unequivocally stated that although he signed the confession, he did not do so voluntarily. The question of the voluntariness of the statement was certainly put in issue. It is of no moment that the use of the confession may not have been prejudicial to the defendant. Jackson v. Denno, supra, has held that it was fundamentally unfair to allow the same jury which would ultimately pass on the guilt or innocence of the accused to simultaneously determine the issue of voluntariness of a statement made by that defendant. The decision required that the trial judge first determine the question, by a hearing separate from the jury, and then if the judge finds that the confession was voluntary, it could be submitted to the jury. This decision has been held to be retroactive in Pennsylvania. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). The primary distinction between Jackson and the present case is that Spears was tried by a judge without a jury. The question for our decision is whether Jackson requires a separate hearing on the issue of voluntariness where the fact finder is a judge rather than a jury. We think that the decision in Jackson requires such a result. The function of a judge trying a case without a jury is twofold: he is a finder of fact, as well as an arbiter of the law. The responsibility is burdensome. But the task becomes too great when we require a judge who has heard evidence of guilt, to objectively and coldly assess a distinct issue as to the voluntariness of the confession. Objectivity cannot be guaranteed, and reliability must be questioned. Jackson properly construed, prohibits the finder of fact from passing on the voluntariness of a confession since its decision as to voluntariness could be colored by evidence as to guilt. The precise issue presented here was considered in United States ex rel. Owens v. Cavell, 254 F.Supp. 154 (M.D.Pa.1965). The court held that a judge cannot at the same time hear evidence of guilt, and evidence pertaining to the voluntariness of a confession, without violating the rule of Jackson v. Denno. The court granted the writ in Owens recognizing that a judge, like a jury, could not properly determine voluntariness. The decision found support in the analogous case of Hutcherson v. United States, 122 U.S.App.D.C., 51, 351 F.2d 748 (1965). In Hutcherson the question arose during a separate hearing being held by the trial judge, in the absence of a jury, on the issue of voluntariness. He asked questions pertaining to the truth of the facts contained in the confession. The Court of Appeals found it necessary to order a separate hearing to determine the voluntariness question, since the trial judge's determination was obviously tainted with the reliability of the confession. Jackson v. Denno requires a procedure designed to insure a reliable and clear-cut determination of the voluntariness of the confession and the record should show the judge's conclusions in this regard and his findings upon the underlying facts. 378 U.S. at 378, 84 S.Ct. 1774. The relator here has not had such a reliable and clear-cut determination. In fact, the record nowhere discloses any determination of the issue of voluntariness. See Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. Of course, the presence of an explicit judicial determination in the record of Spears'...