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UNITED STATES EX REL. WHALEN v. BOOKBINDER

June 23, 1964

UNITED STATES of America ex rel. Edward J. WHALEN
v.
Saul BOOKBINDER, Warden, and Edward Hendricks, Head of Philadelphia Prisons



The opinion of the court was delivered by: KRAFT

In this habeas corpus proceeding the relator, Edward J. Whalen, seeks to invalidate his conviction in the State Court of Pennsylvania for armed robbery. He has been ably represented in this proceeding by court-appointed counsel, Jerome E. Ornsteen, Esq. As the sole basis of his claim for relief in this court relator alleges that perjured testimony, falsely identifying him as the robber, was knowingly used by the police and district attorney's staff in procuring his conviction. We have fully examined the records of all proceedings, criminal and habeas corpus, heretofore had in the state courts. From the evidence adduced upon the full hearings had before us, and judging the credibility of the witnesses who appeared before us, we find the following:

FACTS

 1. On June 29, 1954, the store of Alfred Mosheim in Philadelphia was robbed by an armed man, who wore dark glasses and whose lower face was concealed by a bandana form of mask, which slipped down as the robber was departing the store.

 2. The robbery was investigated by members of several different units of the Philadelphia Police Department. The information obtained by the respective members of each of the different units was not promptly or fully collated or interchanged, so that all the officers involved in the investigation did not have the same knowledge or information.

 3. As the robber was leaving the store, Kathleen Walsh, an employee, saw the robber sufficiently to recognize him as a patron of the store, but could not immediately identify him by name. Shortly thereafter, upon consulting the store records and conferring with Alfred Mosheim, she advised Detective Korotkin that the robber was Whalen, the present relator. Later, on June 29th, she identified a photograph of Whalen procured meanwhile by Korotkin at City Hall, which was shown to her with other photographs.

 4. Leon Freedman, another store employee, became aware of the robbery on June 29 by the position and actions of his employer, though he could not see the robber at the time. Freedman left, without detection, by a side door to request a nearby taproom proprietor to call police. While standing outside the taproom Freedman saw Whalen emerge from Mosheim's store, paper bag in hand, and the lower portion of his face no longer concealed. He observed Whalen remove a gun from his front waistband and put it in the paper bag. Whalen looked at Freedman and began to run. Freedman pursued Whalen for several blocks without overtaking him. Freedman recognized Whalen as a store patron whose name he could not then recall, but he identified a photograph of Whalen later the same day.

 5. Whether Alfred Mosheim saw the robber's face exposed sufficiently to identify him or whether his judgment of identity was influenced by the certainty of the identification of Whalen by Miss Walsh and Freedman is unclear, but, by the end of June 29th, Mosheim firmly believed, in good faith, that he was able to identify Whalen as the robber and subsequently did so.

 6. Relator was arrested on July 9, 1954, at the instance of Detective MacCrory, a member of a different police unit, as the result of information furnished by an undisclosed informer.

 8. Following his arrest relator had a preliminary hearing before a magistrate on July 10, 1954, and a further and final hearing before another magistrate on July 14, 1954. At these hearings relator was represented by counsel of his own selection, the late Garfield Levy, Esq., known to this court to have then been, and stipulated by present counsel to have then been, a well-known lawyer of long and abundant experience in the defense of accused and one possessed of recognized ability. Mr. Levy represented the relator through the subsequent criminal proceedings, including his trial, conviction and sentence.

 9. Following relator's indictment the following proceedings took place:

 (a) September 7, 1954, scheduled for trial before Flood, J.; continued on application of relator's counsel.

 (b) October 27, 1954, trial begun before Crumlish, J., without jury, upon waiver. After partial trial, Crumlish, J. declined to proceed because of his view that trial, despite the waiver, should be to a jury.

 (c) November 15, 1954, trial begun before Nelson, J., without jury; trial was not completed for ...


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