Commonwealth ex rel. Wilkes v. Maroney
423 Pa. 113
Pa.
1966
Check Treatment

Opinion by

Mr. Justice Roberts,

John Wilkes, Sr., was tried by a jury and convicted of murder in tbe second degree in tbe Court of Oyer and Terminer of Fayette County on December 14, 1961. We affirmed tbe conviction on April 21, 1964. Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411 (1964). Certiorari was denied by tbe Supreme Court of tbe United States on December 7, 1964, 379 U. S. 939, 85 S. Ct. 344 (1964).

On June 22, 1965, Wilkes filed a babeas corpus petition in tbe court of common pleas wbicb was denied without bearing. Now before us is tbe appeal from that denial. After reviewing tbe petition and tbe record, we affirm tbe denial of tbe court below.

At appellant’s trial be readily admitted shooting and killing bis twenty year old son Ronald, while tbe latter was attempting to break into appellant’s bouse near midnight. This evidence was corroborated by witnesses present at tbe shooting, one of whom was the defendant’s twelve year old daughter. Tbe evidence most favorable to tbe Commonwealth further tended to show that present in appellant’s bouse on tbe night of tbe shooting was a woman with whom both tbe deceased and tbe appellant bad bad sexual relations and about whom appellant and deceased bad argued on a previous occasion, that appellant and deceased bad bad in tbe recent past several confrontations over matters not related to tbe woman, during which appellant had struck and threatened tbe deceased, that tbe deceased was larger by only ten pounds than the appellant and that when appellant reached for bis shotgun just prior to tbe shooting, be knew that tbe intruder at his door was bis son Ronald. Defense strategy at trial was focused on a plea of self-defense.

Appellant contends that tbe statements made to police by him after bis arrest were involuntary and were *116introduced at trial in violation of Ms constitutional rights. This claim is clearly barred by the defense’s failure to interpose any objection or, in any other way, to apprise the court of a claim that coerciveness surrounded the statements. E.g., Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965).

Belying on Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758 (1964), appellant asserts that he is entitled to relief because of the introduction at trial of statements he made to police without the advice of counsel. While it is true that Escobedo was decided on June 22,1964, almost three years after appellant’s trial, appellant’s conviction was not then “final” as we defined that word in Commonwealth v. Negri, 419 Pa. 117, 128-29, 213 A. 2d 670, 675-76 (1965), and thus under Negri appellant would have been entitled to raise an Escobedo claim. In the meanwhile, however, the Supreme Court of the United States has decided that Escobedo need only be applied to defendants whose trials began after June 22, 1964. Johnson v. New Jersey, 384 U. S. 719, 723, 86 S. Ct. 1772, 1775 (1966). Since our finality holding in Negri was solely premised on our projection as to the category of cases to which the Supreme Court intended the Escobedo rules must apply and since that category has now received a different, and definitive delineation which does not encompass appellant’s case, appellant is not entitled to raise an Escobedo claim. Commonwealth v. Cheeks, 423 Pa. 67, 223 A. 2d 291 (1966).

Appellant claims that he did not receive constitutionally adequate counsel. The record clearly indicates that at trial appellant was defended by two attorneys, one of whom had forty years experience including a number of years as an assistant district attorney. Moreover, a reading of the record does not suggest that the conduct of appellant’s defense was constitutionally in*117adequate. Appellant’s contentions seem to come down to the fact that he is not now satisfied with the strategy adopted by his counsel at trial. We have said before that such claims afford no basis for a hearing or for relief. Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 386-89, 207 A. 2d 829, 831-32 (1965).

Wilkes’ petition in this Court also contains a statement suggesting that he was denied counsel on appeal. This allegation is refuted by the record and by the opinion of this Court, Commonwealth v. Wilkes, 414 Pa. 246, 248, 199 A. 2d 411, 412 (1964). In the absence of some extraordinary circumstance described with specificity, a bare allegation in a habeas corpus petition which is clearly contradicted by the record does not entitle the petitioner to a hearing. Commonwealth ex rel. Ryan, v. Rundle, 411 Pa. 613, 618, 192 A. 2d 362, 364, cert. denied, 375 U. S. 948, 84 S. Ct. 358 (1963); see Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 131, 151 A. 2d 480, 481, cert. denied, 361 U. S. 898, 80 S. Ct. 201 (1959); cf. Commonwealth ex rel. Butler v. Rundle, 407 Pa. 535, 538, 180 A. 2d 923, 925, cert. denied, 371 U. S. 866, 83 S. Ct. 127 (1962). Moreover, appellant’s failure to raise this point in the habeas corpus petition he presented to the court below precludes him from relief on this claim here. See Commonwealth ex rel. Pacewicz v. Turley, 399 Pa. 458, 466, 160 A. 2d 685, 689 (1960); Commonwealth ex rel. Hullig v. Ashe, 145 Pa. Superior Ct. 11, 18, 20 A. 2d 852, 856 (1941).

Several of appellant’s contentions surround the admissibility of “love notes” which passed between himself and a young woman with whom both he and his son Ronald were having sexual relations. Appellant’s claim that the notes were incompetent because they were turned over to the prosecution by his wife was considered and disposed of by us on direct appeal. Commonwealth v. Wilkes, 414 Pa. at 250-51, 199 A. 2d *118at 413. His claim, raised for the first time in his petition for habeas corpus, that the notes should have been excluded because their inflammatory quality outweighed their relevance was an issue which could have been raised at trial. Trial counsel’s failure to do so, even though mistaken, may not be rectified by a writ of habeas corpus. As we have said time and again, the writ of habeas corpus may not be used to circumvent procedural rules. See, e.g., Commonwealth ex rel. Walls v. Maroney, 416 Pa. 290, 295, 205 A. 2d 862, 865 (1965).

Appellant also asserts that the “love notes” should not have been admitted at trial because they were obtained in violation of the Fourth Amendment. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684 (1961). Appellant’s Fourth Amendment claim here may be simply disposed of by citing the failure of the defense at any time during a post-Mapp trial or its appeal to challenge admission of the evidence on Fourth Amendment grounds.1 See Commonwealth v. Raymond, 412 Pa. 194, 201-03, 194 A. 2d 150, 154 (1963), cert. denied, *119377 U. S. 999, 84 S. Ct. 1930 (1964). Defense counsel’s objection to the admission of the “love notes” was clearly confined to the ground that they violated the rule that testimony of a defendant’s spouse is not normally admissible in a criminal trial. As we have said before “[w]here the reason upon which an objection is based is specifically stated, as was done in this case, all other reasons for exclusion are waived.” Commonwealth v. Negri, 414 Pa. 21, 29, 198 A. 2d 595, 600 (1964) .

Appellant argues that his acquittal by a coroner’s jury made his subsequent prosecution in the court of oyer and terminer a denial of due process. There is no basis in reason or authority for an equation of the effect of a trial jury verdict and a coroner’s jury verdict for purposes of the doctrines of double jeopardy or autrefois acquit. The coroner’s inquest is merely designed to serve “as an aid in the detection of crime and . . . [is] merely advisory to those charged with the administration of the criminal law.” Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 334, 206 A. 2d 288, 290 (1965) . We have held that a conviction of first degree murder could not be attacked in a habeas corpus proceeding solely because a coroner’s jury had recommended that the defendant be held for the grand jury only on a manslaughter charge. Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A. 2d 210 (1950). We have even said that a coroner’s inquest may normally be held in the absence of the defendant, Commonwealth ex rel. Linde v. Maroney, supra or his counsel, Common*120wealth ex rel. LaRue v. Rundle, 417 Pa. 383, 385, 207 A. 2d 829, 831 (1965); Commonwealth ex rel. Swilley v. Maroney, 420 Pa. 419, 218 A. 2d 242 (1966). Surely, in view of this, it cannot be maintained that any substantial rights are concluded by the coroner’s jury.

Appellant urges that his detention for a period of three and one half days prior to a hearing violated his constitutional rights. Since we have already disposed of petitioner’s contention with regard to the exclusion of his pretrial statements, we fail to see how such a three and one half day period of detention, of itself, affords petitioner any legal remedy at this time. As we have said before, “the absence of an immediate preliminary hearing for a person arrested does not, of itself, constitute any violation of his constitutional rights.” Commonwealth ex rel. Santiago v. Myers, 419 Pa. 326, 329, 214 A. 2d 206, 208 (1965).2

Appellant next asserts that evidence introduced at his trial at most supports a conviction of voluntary manslaughter and that the court erred in charging the jury in regard to murder and manslaughter. Our review of the record convinces us that there was clearly no such lack of evidence as to constitute a constitutional denial of due process. See Commonwealth ex rel. Torrance v. Salzinger, 406 Pa. 268, 177 A. 2d 619, cert. denied, 369 U. S. 888, 82 S. Ct. 1162 (1962). Any further complaint as to the sufficiency of the evidence may not be raised in this habeas corpus proceeding since appellant failed to raise this ground in his direct *121appeal.3 See, e.g., Commonwealth ex rel. Budd v. Maroney, 418 Pa. 454, 211 A. 2d 479 (1965); Commonwealth ex rel. Bishop v. Maroney, 399 Pa. 208, 159 A. 2d 893, cert. denied, 364 U. S. 846, 81 S. Ct. 89 (1960). As to the charge, it should be noted that the trial judge instructed the jury on murder and voluntary manslaughter without exception being taken in this respect. Even assuming the charge was incorrect in light of our change in the law of manslaughter in Commonwealth ex rel. Johnson v. Myers, 402 Pa. 451, 167 A. 2d 295, cert. denied, 366 U. S. 921, 81 S. Ct. 1099 (1961),4 we specifically held in the Johnson case that errors in a charge may not be the basis for relief in a habeas corpus proceeding. Id. at 456, 167 A. 2d at 298.

Appellant next contends “that defense counsel was very negligence [sic] in notifying four (4) very important defense witnesses. A look at the records will show that not one (1) defense witness was presented during trial.” This contention is puzzling in so far as it possibly asserts that appellant was denied the right to call witnesses in his behalf. The record reveals that in addition to the defendant himself, five character witnesses testified for the defense.5 6It is true that an additional character witness was unable to appear, but *122defense counsel refrained from seeking a continuance and the Commonwealth stipulated that the absent witness would testify as to defendant’s good character. Finally, the record suggests that the Commonwealth placed on the stand, and thus made available to the defense, all the persons having information relevant to the shooting and the circumstances surrounding it. We thus believe that appellant’s allegation that he was denied the right to call witnesses in his behalf is refuted by the record and the court below was therefore correct in denying a hearing on the habeas corpus petition. Commonwealth ex rel. Ryan v. Rundle, supra.

Appellant finally asserts that he is constitutionally entitled to have his petition for a writ of habeas corpus considered by a judge other than the one who presided at his trial. Since appellant nowhere even alleges personal bias on the part of the court below,6 it is difficult to imagine upon what legal grounds he premises this claim. Our research reveals no reported case in this Commonwealth where it has even been contended that a habeas petitioner is entitled, constitutionally or otherwise, to have his petition considered by a judge different from the one who presided at his trial. Although the Supreme Court of the United States has not directly ruled on this question, it has recently rejected the claim that a state judge may not constitutionally hear a nonsummary criminal contempt pro*123ceeding against a witness in a prior trial who had failed to respond to that judge’s instructions. Ungar v. Sarafite, 376 U. S. 575, 84 S. Ct. 841 (1964). Moreover, the post-conviction remedies provided in federal courts under 28 U.S.C. §2255, 62 Stat. 967 ch.646 (1948), as amended, 63 Stat. 105 ch.139, §114 (1949), are structured in such a way that defendants convicted in the districts where only one judge sits would normally be required to have their habeas petitions considered by the judge who presided at trial and defendants convicted in other districts would, in normal course, not infrequently have their habeas petitions heard by the judge who presided at trial. See United States v. Smith, 337 F. 2d 49, 51-54 (4th Cir. 1964), cert. denied, 381 U. S. 916, 85 S. Ct. 1542 (1965). The lower federal courts have consistently rejected contentions under section 2255 that habeas petitioners are entitled to have a different judge consider their petition. United States v. Smith, 337 F. 2d 49 (4th Cir. 1964), cert. denied, 381 U. S. 916, 85 S. Ct. 1542 (1965); Deitle v. United States, 302 F. 2d 116 (7th Cir. 1962); United States ex rel. Leguillou v. Davis, 212 F. 2d 681 (3d Cir. 1954); Carvell v. United States, 173 F. 2d 348 (4th Cir. 1949) (per curiam); cf. United States v. Lowrey, 77 F. Supp. 301 (W.D. Pa. 1948), aff’d per curiam, 172 F. 2d 226 (3d Cir. 1949), cert. denied, 339 U. S. 969, 70 S. Ct. 986 (1950). Indeed, as one federal court has said “it was to avoid the unseemly practice of having attacks upon the regularity of trials made before another judge through resort to habeas corpus that section 2255 of Title 28 was inserted in the Judicial Code.” Carvell v. United States, supra at 348-49.

In Pennsylvania the new Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, §5, 19 P.S. §1180-5, as well as its predecessor the Act of May *12425, 1951, P. L. 415, §1, 12 P.S. §1901,7 provides that post-conviction remedies must normally be sought in the court where petitioner was sentenced. In the many judicial districts of this Commonwealth where only one judge sits,8 habeas petitions will of necessity be heard by the judge who presided at the petitioner’s trial. Thus not only is there no warrant for the contention that a judge may not constitutionally entertain a habeas corpus petition from a prisoner tried by him, it appears that the General Assembly of this Commonwealth, as well as the Congress of the United States, deems this an acceptable and desirable practice. Accordingly, we hold that the mere fact that an application for post-conviction relief is passed on by the judge who presided at the petitioner’s trial does not afford petitioner any constitutional or other ground for complaint.

Order affirmed.

Mr. Justice Cohen took no part in the consideration or decision of this case.

Notes

It is undisputed that the notes were turned over to the county coroner (who was acting as a mortician) by appellant’s estranged wife and her boy friend, John Thomas, who found them inadvertently while searching appellant’s home for the clothes of appellant’s daughter. Even assuming that the wife and Thomas’ search constituted a trespass vis-a-vis appellant, there is nowhere the slightest suggestion that police instigated or participated in the search. Although the Supreme Court of the United States has not ruled on the question since Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574 (1921), the vast majority of state and lower federal courts have held, in accord with Burdeau, and despite Mapp, that evidence illegally seized and turned over to police by private persons may not be excluded from state or federal courts on Fourth Amendment grounds. E.g., United States v. Goldberg, 330 F. 2d 30 (3d Cir.), cert. denied, 377 U.S. 953, 84 S. Ct. 1630 (1964) ; State v. Robinson, 86 N.J. Super. 308, 206 A. 2d 779 (Super. Ct. 1965) ; People v. Torres, 49 Misc. 2d 39, 266 N.Y.S. 2d 695 (S. Ct. 1966) ; Common*119wealth v. Tanchyn, 200 Pa. Superior Ct. 148, 152, 188 A. 2d 824, 826, cert. denied, 375 U. S. 866, 84 S. Ct. 138 (1963). Contra, Lowry v. State, 42 Okla. Crim. 326, 276 Pac. 513 (1929) (semble). This Court, however, has not passed on the issue of whether evidence illegally seized by private persons is excludable from criminal trials, and we express no opinion at this time.

Petitioner’s arrest and preliminary hearing took place long before the effective date of Pa. R. Crim. P. 116(a) which requires that an arrested defendant shall be taken “without unnecessary delay” before the proper issuing authority for a preliminary arraignment and Pa. R. Crim. P. 116(g) (1) entitling a defendant to a preliminary hearing, except for cause shown, in no less than three nor more than ten days, after the preliminary arraignment. See Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 311 n.3, 207 A. 2d 810, 811 n.3 (1965).

Compare, Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, §§3-4, 19 P.S. §§1180-3-4 which provides that post-conviction relief may not be granted where “the petitioner knowingly and understandingly failed to raise it and it could have been raised ... at the trial [or] on appeal.” The Post Conviction Hearing Act applies only to petitions filed after March 1, 1966 and hence does not control appellant’s petition. Act of January 25, 1966, P. L. (1965) 1580, §14, 19 P.S. §1180-14.

Compare, however, our modification of the Johnson holding in Commonwealth v. Jordan, 407 Pa. 575, 587-89, 181 A. 2d 310, 317 (1962).

One of these five witnesses had initially been subpoenaed by the Commonwealth but was never called to testify for the prosecution.

The opinion of the trial judge dismissing this petition for a writ of habeas corpus does contain the remark: “The events and circumstances which led to the tragic occurrence of October 23, 1961 [i.e., the killing for which petitioner was convicted of murder in the second degree] can be directly traced to the completely immoral and fantastic relationship existing between the members of the petitioner’s family.” Standing by itself, however, we believe that this remark fails to raise any question of prejudice on the trial judge’s part either at trial or in consideration of this petition.

Repealed by the Act of January 25, 1966, P. L. (1965) 1580, §13, 19 P.S. §1180-13. The Post Conviction Hearing Act came into effect on March 1, 1966. Act of January 25, 1966, P. L. (1965) 1580, §14, 19 P.S. §1180-14. Jurisdiction of appellant’s petition was governed by the Act of May 25, 1951, P. L. 415, §1, 12 P.S. §1901.

See 419 Pa. at v-xiv.