The opinion of the court was delivered by: MARSH
The relator has filed an application for a writ of habeas corpus upon which a rule to show cause why a hearing should not be held was granted and counsel appointed for the relator.
From the records produced at the hearing on the rule, it appeared that at No. 21 February Sessions, 1955, in the Court of Quarter Sessions for the County of Erie, Pennsylvania, the relator was found guilty of burglary and larceny by a jury and was sentenced to the Western State Penitentiary for not less than 5 or more than 15 years.
At No. 399 September Term, 1955, in the Court of Common Pleas of Erie County, relator filed a petition for a writ of habeas corpus, which on July 22, 1955, was dismissed without a hearing.
At No. 249 May Term, 1956, in the Court of Common Pleas of Erie County, the relator filed another petition for a writ of habeas corpus, alleging (1) 'that his conviction was secured by the prosecution on perjured testimony knowingly introduced to obtain a conviction' and (2) that prosecuting officers suppressed evidence which, if introduced, would have been favorable to the Petitioner.' He further averred that Stanley Szewczyk
implicated the petitioner 'at the suggestion of the arresting officers and in fear of brutality at the hands of the Police Officers if he failed to implicate the Petitioner.'
The affidavit of Stanley Szewczyk was attached to this petition which, in its pertinent part, relates:
'They (Police) also asked me 'if Szocki ever committed any crimes with me,' I said he did not. Then the police told me there was two men that robbed 'Harry's Sandwich Shop', and the police insisted that Szocki was with me, therefore, I got frightened by the impression the police made, namely, that I would get the third degree if I did not implicate Szocki with me in burglarizing 'Harr's Sandwich Shop' (sic). Therefore, under duress, I implicated Szocki with participating in burglarizing 'Harry's Sandwich Shop', which, I pleaded guilty to. However, Szocki was not there, or any other time, in any way, shape, or form implicated with me nor did he ever accompany me on the burglaries I committed or pleaded guilty to.'
On April 7, 1956, a rule to show cause was granted, and counsel was appointed for the petitioner. Petitioner's appointed counsel filed a brief which contended that when a prisoner is convicted as a result of perjured testimony knowingly used by the prosecution, or of perjured testimony resulting from intimidation by the arresting officers, he is entitled to a hearing on a petition for a writ of habeas corpus.
However, it was thought by the Hon. Samuel J. Roberts, P.J., Orphans' Court, specially presiding, to whom the petitions were presented, and who was also the trial judge, that both the petition at No. 399 September Term, 1955, and the petition at No. 249 May Term, 1956, failed to show grounds justifying the issuance of a writ of habeas corpus, but were in the nature of motions for a new trial.
Thereupon, by order dated May 8, 1956, the last mentioned petition was referred:
After the hearing, the Court entered the following order:
'Roberts, P. J. Orphans' Court, Specially Presiding:
'After hearing the testimony of defendant Stanley Szewczyk, on the motion of defendant Stanley Szocki for a new trial, and upon careful review of Szewczyk's testimony given at Szocki's trial, we are not satisfied that the witness' recanting testimony in this proceeding is true; and therefore a new trial will be denied. See Commonwealth v. Palarino, 168 Pa.Super. 152 (77 A.2d 665), and Commonwealth v. Coroniti, 170 Pa.Super. 245 (85 A.2d 673).
'And now, to wit, June 1, 1956, the rule heretofore granted on defendant Stanley Szocki's motion for a new trial is discharged and the motion is dismissed.'
In this court relator contends he has been deprived of his constitutional rights, alleging lack of due process for the same reasons advanced in the state courts. A federal district court is required to exercise its independent judgment upon consideration of the petition and answer, and the complete record in the state courts ( Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469; DeVita v. McCorkle, 3 Cir., 1954, 216 F.2d 743), and decide issues of fact relating to fundamental fairness. Thompson v. Dye, 3 Cir., 1953, 208 F.2d 565; Ackerman v. Johnston, D.C.W.D.Pa.1955, 139 F.Supp. 890, 892, affirmed 235 F.2d 958. This we have done and find that relator was not convicted on perjured testimony, allegedly given by Stanley Szewczyk, which was ...