Before McLAUGHLIN and HASTIE, Circuit Judges, and DUMBAULD, District Judge.
This is an appeal by a Pennsylvania state prisoner, who is under sentence of death for first degree murder, from a United States District Court's denial of his petition for a writ of habeas corpus on a claim that the procedure at his trial deprived him of due process of law. The highest state court had rejected this claim. Commonwealth v. Rucker, 1961, 403 Pa. 262, 168 A.2d 732, cert. denied, 368 U.S. 868, 82 S. Ct. 91, 7 L. Ed. 2d 65.
During appellant's trial and before his conviction, the jury was informed, over his objection, that he had previously been convicted of voluntary manslaughter and aggravated assault. The jury was instructed that it should consider these convictions only for the purpose of determining the penalty for first degree murder if and after the accused should be found guilty of that crime. Appellant contends that this introduction of his prior criminal record in evidence during the presentation of the prosecution's case in chief*fn1 was so lacking in justification and so prejudicial that it constituted a denial of due process of law. On October 10, 1962, in United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, this court, sitting en banc, sustained a similar contention. Therefore, our first inquiry is whether this case differs in any significant way from Scoleri.
The Scoleri case grew out of a homicide during the course of an armed robbery. The defense attempted to establish an alibi and to prove that the witnesses who placed the accused at the scene of the crime had mistaken another person of rather similar appearance for him. But when the jury retired to consider this evidence, there was also before it Scoleri's criminal record of twenty-five prior robbery convictions, which had been included in the government's case in chief. Although the jury had been instructed to consider this record only in determining the penalty for first degree murder and not on the question of guilt or innocence, this court concluded that such proof of a large number of previous robberies by the accused was "gravely prejudicial" on the controverted question of his participation in the instant robbery. And since this prejudice could have been avoided and the limited proper purpose of the evidence could as well have been accomplished by merely withholding the evidence of prior crimes until after guilt had been determined, a majority of this court held that due process of law had been denied. It was the essence of our holding that, in the circumstances of the Scoleri case, the introduction of evidence of prior crimes needlessly subjected the accused to "grave prejudice".
With this rationale of Scoleri in mind, we next consider the issues and the evidence in the present case. This too was an indictment for murder alleged to have occurred during the commission of a robbery. The prosecution also undertook to show that the killing was willful and deliberate.
The victim was the wife of the proprietor of a small corner grocery store in Philadelphia. There was undisputed evidence that on December 13, 1958, the couple closed the store at 6:30 p.m. and retired to their adjoining living quarters. About 9 p.m. two men burst in upon them, savagely beat both of them, stabbed and killed the wife, took more than one hundred dollars from a drawer and from the cash register, and escaped. Within two hours a search of the immediate neighborhood resulted in the apprehension and arrest of the appellant and another man. Their clothing was stained with what was later identified as human blood of the same type as that of the deceased, and they had in their possession money and papers, which were later identified as proceeds of the robbery.
Appellant made a full confession within a few hours after his arrest and shortly thereafter he reenacted the crime at its scene. A court stenographer recorded the confession verbatim, and it was introduced into evidence at the trial. In his confession, he admitted breaking into the house for the purpose of robbery, beating and stabbing the deceased, accomplishing the robbery, and fleeing from the premises. The defense did not contend that the confession was coerced or that it was incorrect in any detail.*fn2
At appellant's trial the only defense attempted was a showing and argument in mitigation that accused was a heavy drinker, that he was quarrelsome and bellicose when drinking, and that he had consumed considerable amounts of wine and whiskey shortly before setting out on his felonious enterprise. However, voluntary drunkenness was no defense at all in the circumstances of this case. On the clear and undisputed evidence, including appellant's explicit admission, this was a homicide committed during the commission of a felony. In accordance with Pennsylvania law the trial judge charged as follows:
"Now, if you find that the defendant killed Rose Schloss in the perpetration of, or attempt to perpetrate, the felony of burglary or robbery, then the affirmative defense of intoxication would not be meaningful at all, because the specific intent to kill is not required under our statute to raise the crime to first degree murder under such circumstances."
Consistent with this charge, the jury could not properly have used the evidence of intoxication as a basis for finding the accused guilty of an offense less serious than first degree murder. Moreover, since appellant's drunkenness was voluntary, and his detailed confession and reconstruction of the crime demonstrated his awareness of what he was doing, the jury could not reasonably have avoided the conclusion that the accused was responsible for his conduct.
More generally, the evidence was clear, overwhelming and uncontroverted on every point essential to the proof of first degree murder. There was neither a significant conflict in the evidence nor a doubtful issue of fact in connection with which the jury's awareness of the defendant's prior conviction of voluntary manslaughter and aggravated assault could have been prejudicial. Indeed, a reading of the record makes it very clear that the only real question was whether death or a lesser penalty should be imposed as punishment for the felonymurder to which the accused had confessed. That, of course, is the very purpose for which the jury could properly consider the evidence of prior crime.
We recognize that there are some situations in which the procedure in a criminal investigation or prosecution has been so shocking and outrageous that a conviction will be vacated even though actual prejudice to the accused has not been proved. The use of torture or the imposition of gross indignity during the investigation of crime is such an intolerable procedure. Brown v. Missisippi, 1936, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682; Rochin v. California, 1952, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183. So is the willful employment of perjured testimony or the deliberate suppression of evidence favorable to the accused. Pyle v. Kansas, 1942, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214. In such cases the reprehensible character of the behavior of the representatives of the state is decisive without regard to any question of its effect upon the outcome of a trial.
But we are not dealing here with official conduct which is grossly wrong, regardless of any prejudicial effect upon the trial of the accused. Courts, including our own, repeatedly sanction the admission of evidence for one purpose with a cautionary instruction that it may not be used for any other. E.g., United States v. Laurelli, 3d Cir., 1961, 293 F.2d 830, cert. denied, 1962, 368 U.S. 961, 82 S. Ct. 406, 7 L. Ed. 2d 392. United States v. Stirone, 3d Cir., 1958, 262 F.2d 571, rev'd on other grounds, 1960, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252. In this very case, if the accused had testified in his own defense, evidence of prior crimes would have been admissible with an instruction that it be considered for the limited purpose of attacking his credibility. Commonwealth v. Quaranta, 1928, 295 Pa. 264, 145 A. 89. Courts frequently deplore such procedure. Judge Learned Hand has described it as "the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody's else." See Nash v. United States, 2d Cir., 1932, 54 F.2d 1006, 1007, cert. denied, 285 U.S. 556, 52 S. Ct. 457, 76 L. Ed. 945. But, the procedure is interdicted "only in the clearest cases of gross and easily avoided prejudice" to some party. See Torrance v. Salzinger, 3d Cir., 1962, 297 F.2d 902, ...