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UNITED STATES EX REL. LOWRY v. MYERS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


June 14, 1965

UNITED STATES of America ex rel. John LOWRY
v.
David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania

The opinion of the court was delivered by: LORD, III

Relator in this petition for a writ of habeas corpus was convicted in 1951 by a jury in the Court of Quarter Sessions of Bucks County, Pennsylvania. The jury under Pennsylvania practice fixed the sentence at life imprisonment. The burden of his complaint here, as it was in the state courts where he has exhausted his remedies, is that his prior criminal record was introduced into evidence over his objection. He claims that this resulted in a trial so fundamentally unfair as to result in a denial of due process. The resolution of the question raised depends entirely on an appraisal of the state record, which is before me, and no hearing is required.

Lowry was indicted for his part as the driver of the getaway car in a felony murder. The evidence against him was largely circumstantial, except for a statement by Lowry in which he admitted driving the other two defendants (who were tried separately) to and from the scene of the crime, but denied any knowledge of their felonious purpose. There was evidence that the car was driven from the scene rapidly and without lights. There was testimony that about forty-five minutes after the crime defendant appeared in a diner asking about the commotion and stating that he had been asleep (although his statement clearly refutes this). He asked two waitresses if they had seen the car, and when one said she had and the other that she had not, he commented to the latter: 'You are a smart girl, Pat, to keep your mouth shut.'

  After the Commonwealth had presented all of its substantive evidence, it then proposed to introduce the defendant's criminal record. The following occurred at side bar (N.T. 1186-1187):

 'MR. BACK: We are not going to ask for an offer of proof, because that is not necessary, but this is to prove the prior record, I believe. 'MR. CURTIN: That is correct. 'MR. BACK: We will just enter a formal objection, without stating any reason, so that one is noted on the record. 'THE COURT: Well, are you going to ask for the infliction of the death penalty? 'MR. CURTIN: Yes. The possible testimony which the Commonwealth is about to produce is to show the prior record of the defendant.'

 Thereafter, not only were records of prior convictions introduced, with the sentences imposed, but also of prior charges on which defendant had been acquitted. The record from Philadelphia County showed the following: Indictment Charge Disposition Sentence /-- /-- /-- /-- 301 July 1934 larceny of auto, receiving not guilty stolen goods (r.s.g.) 302 " " operating vehicle without not guilty the consent of the owner (o.v.w.c.o.) 943 Feb. 1935 larceny of auto, r.s.g. plead guilty 2 1/2-5 yr ยง . 944 " " o.v.w.c.o. " " See 943 945 " " larceny of auto, r.s.g. not guilty 946 " " o.v.w.c.o. " " 947 " " larceny of auto, r.s.g. plead guilty See 943 948 " " o.v.w.c.o. " " See 943 456 Apr. 1938 larceny, r.s.g. " " 18 mo.- " " 3 yrs. 457 " " larceny, r.s.g. " " 1-2 yrs.

19650614

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