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UNITED STATES EX REL. BROTHERS v. RUNDLE

September 10, 1968

UNITED STATES of America ex rel. Herbert BROTHERS
v.
Alfred T. RUNDLE, Superintendent



The opinion of the court was delivered by: LUONGO

 Relator, Herbert Brothers, was convicted in the state court on charges of sodomy and related offenses. He has filed here a petition for writ of habeas corpus *fn1" contending that he was denied due process of law (1) by the Commonwealth's failure to produce a certain witness, and (2) the trial judge delivered an "Allen charge" *fn2" when the jury sought clarification of the evidence during its deliberations.

 I have examined the record of the state court proceedings and have concluded that the merits of relator's contentions may be disposed of on that record without an evidentiary hearing in this court.

 1. Failure to produce witness.

 The object of the assault was a nine year old boy who will be referred to hereafter simply as Victim. At trial, Victim testified that he had encountered Brothers in a grocery store; that another boy (whom he did not know, but had seen at school), of approximately Victim's age, was also in the store; that Brothers and the two boys left the store at about the same time; that Brothers seized both boys, dragged them about a half-block down the street and into an alley; that the other boy broke away and fled, and thereafter Brothers sexually assaulted Victim. The other boy was not produced at trial.

 Brothers contends that the failure to produce the other boy as a witness constituted a denial of due process of law or at the very least entitled him to an instruction that the jury could infer, from that failure to produce, that the other boy's testimony would have been favorable to Brothers.

 Pennsylvania law does not require the prosecution to produce all witnesses in a criminal case if the testimony is cumulative or relates to background information. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649 (1930); Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275 (1908); Commonwealth v. Karamarkovic, 218 Pa. 405, 67 A. 650 (1907).

 Due process commands fundamental fairness in the conduct of a trial. It is not a requirement of due process that the prosecution search out and produce every witness, and there is no violation if the prosecutor "merely fails to disclose evidence of which he has no knowledge or fails simply to use or disclose evidence which is only vague, inconclusive and cumulative * * *." Jordon v. Bondy, 72 App.D.C. 360, 114 F.2d 599, 604 (1940); In re Curtis, 36 F. Supp. 408 (D.C.D.C.1941). On the other hand, due process prohibits suppression by the prosecution of material evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964); United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3d Cir. 1952), cert. denied, 345 U.S. 904, 73 S. Ct. 639, 97 L. Ed. 1341 (1953); United States ex rel. Thompson v. Dye, 221 F.2d 763 (3d Cir.), cert. denied sub nom. Commonwealth of Pennsylvania v. United States ex rel. Thompson, 350 U.S. 875, 76 S. Ct. 120, 100 L. Ed. 773 (1955).

 This record affords no basis whatsoever for a charge of suppression of material evidence favorable to the accused. It appears that the prosecution neither knew the identity of the other boy nor did it have any reason to believe that he could give testimony favorable to the accused. It is quite apparent that the other boy was not even an eyewitness to the crimes charged. At worst, the prosecution might be charged with a lack of diligence in failing to ascertain the identity of, and to produce a witness whose testimony could only be corroborative as to events preceding the commission of the crimes. From relator's standpoint, in light of his alibi defense, i.e. that he was at home with his wife at the time of the alleged incidents, the other boy's testimony could only have been offered to refute the identification of relator as the man in the store. From the prosecution's point of view, on the other hand, the other boy's testimony would constitute, in the main, cumulative evidence corroborating Victim's identification of Brothers. There was ample corroboration of Victim's testimony on that score. A 17 year old clerk at the grocery store identified Brothers as having been present in the store on the evening in question and he testified further that Brothers left the store at or about the same time as the two little boys. There was also testimony by Victim's 12 year old sister placing Brothers on the store steps near Victim at a time immediately following the assault. Additionally, Victim had identified Brothers as the man who had rubbed his (Victim's) head at the Post Office the day before the assault, an incident witnessed by Victim's 15 year old brother. The 15 year old brother testified at the trial and identified Brothers as the man involved in the Post Office incident.

 Failure of the prosecution to ascertain the identity of the other boy and to produce him at the trial, under the circumstances here present, violated no fundamental rules of fairness and did not constitute a denial of due process of law.

 As to relator's complaint concerning failure of the court to charge the jury that it might draw an inference favorable to him from the Commonwealth's failure to call the other boy as a witness, the weight to be given to evidence or to the failure to produce evidence is a matter of state law and will concern the federal courts only if the state court's interpretation of its law offends due process. To establish a violation of due process requires a showing of lack of fundamental fairness. Under Pennsylvania law, failure to produce an available, informed and competent witness raises a factual inference, not a presumption of law, and refusal of the trial judge to charge as to such factual inference is not reversible error. Bayout v. Bayout, 373 Pa. 549, 96 A.2d 876 (1953). Further, in the absence of evidence that the unproduced witness saw the occurrence for which the defendant stands indicted, the factual inference may not be drawn and in such case an instruction concerning the drawing of a factual inference is not warranted at all. Commonwealth v. Reina, 186 Pa.Super. 116, 140 A.2d 633 (1958). Pennsylvania rules as to the instructions which may or must be given to the jury concerning failure to produce a witness offend no fundamental concepts of fairness inherent in due process.

 2. The "Allen charge".

 Relator's second ground is that due process was violated by delivery of an "Allen charge", particularly when viewed in light of the circumstances under which those instructions were given.

 This case was submitted to the jury at approximately 4:00 o'clock in the afternoon. In the evening the jury returned apparently seeking clarification of evidence. The trial judge responded with additional instructions on the law, which are set out in full in the Appendix, and the jury retired to resume its deliberations at 10:12 p.m. At 11:38 p.m. the jury ...


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