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UNITED STATES EX REL. JOHNSON v. RUNDLE

January 31, 1968

UNITED STATES of America ex rel. Emanuel JOHNSON, Jr.
v.
Alfred T. RUNDLE, Superintendent



The opinion of the court was delivered by: LUONGO

 In a trial before a judge without a jury in the State court, relator, Emanuel Johnson, was convicted on charges of rape, robbery and assault and battery with intent to ravish. He was sentenced to imprisonment for three consecutive terms of three to ten years each. In this habeas corpus petition he seeks to have the convictions set aside because they resulted from alleged violations of his constitutional rights. The violations charged are that:

 1. the police were permitted to testify to alleged admissions made by Johnson at a time when he had not been advised of his constitutional rights;

 2. evidence obtained as a result of an illegal arrest was used against him; and

 3. the convictions so lacked evidentiary support as to constitute a denial of due process.

 State remedies have been exhausted. *fn1"

 1. Failure of police to inform relator of constitutional rights.

 In the state habeas proceedings Johnson was afforded a full and fair evidentiary hearing on the charge that the police failed to warn him of the right to counsel and of the right to remain silent. There is ample support for the state court's finding that the police did inform Johnson of the right to counsel and that, at the time he made the statements, he was aware that he had the right to remain silent. No hearing was required, therefore, and none was conducted by this court on that charge. Townsend v. Sain, 372 U.S. 293, 318, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 2. Evidence obtained as a result of illegal arrest.

 Johnson contends that he was illegally arrested and that the convictions were based on evidence *fn2" obtained as a result of, and, therefore, tainted by the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

 The Commonwealth argues that Johnson has waived the right to complain of the use of such evidence because no objection was made to its admission at the criminal trial. The question of waiver of a constitutional right is a federal question, United States ex rel. Gockley v. Myers, 378 F.2d 398 (3d Cir. 1967), and if this arrest was unlawful, the question of waiver will necessarily come into play. Since the state court did not inquire into the propriety of the arrest, there was no reliable state court record on which this court could judge whether the arrest violated relator's constitutional rights. A hearing was, therefore, held here to determine whether the arrest *fn3" was lawfully made (a) pursuant to a validly issued warrant of arrest, or (b) on probable cause for arrest without a warrant.

 (a) Validity of the warrant.

 On April 19, 1961, Captain Harner of the Cheltenham Township police appeared before a Justice of the Peace and swore out three complaints for the arrest of Johnson. The complaints have been carefully examined. They contain nothing more than a recital of the acts allegedly committed upon each of three Springfield Township assault victims. There is a complete absence of factual basis for cause to believe that Johnson had committed the acts. Standing alone, the complaints were inadequate as a basis for issuance of the arrest warrant. Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958). At the hearing before me, the Commonwealth attempted to establish that more information was given to the Justice of the Peace than was contained in the complaints, but the attempt failed. Neither Captain Harner nor the Justice of the Peace had any recollection that any information other than that contained in ...


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