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UNITED STATES EX REL. SHAYKH MUHAMMAD ALI HASAN V.

February 14, 1969

UNITED STATES of America ex rel. Shaykh Muhammad Ali HASAN a/k/a Abyssinia Hayes
v.
Paul J. GERNERT, Chairman, Pennsylvania State Board of Parole



The opinion of the court was delivered by: BODY

 BODY, District Judge.

 The relator seeks a writ of habeas corpus. A hearing on his petition was held on September 26, 1968 pursuant to an order of the Third Circuit Court of Appeals in United States ex rel. Hasan v. Gernert, 395 F.2d 193 (May 7, 1968, per curiam). Briefs were filed by both sides. The relator was represented by John W. Packel, Esq. and Herman J. Pollock, Esq. of the Public Defenders' Office.

 The crux of the relator's present action *fn1" rests on a contention that a certain valuable police report, known as a "75-48", was denied to him and thereby deprived him of an opportunity to test the credibility of three of the government's main witnesses. This, it is contended, amounted to an unconstitutional suppression of evidence by the Commonwealth entitling the relator to a new trial and discharge from the custody of the State Board of Parole.

 FACTS

 On November 10, 1964 the relator was tried before the Honorable Charles L. Guerin and a jury on three bills of indictment, September Sessions 1964, Philadelphia County, Nos. 507, 508, 509, charging inciting to riot, conspiracy and destruction of property. These indictments charged him with participating in and inciting disorders which took place on the night of August 28 and 29, 1964, in the vicinity of Twenty-second Street and Columbia Avenue in Philadelphia. At the trial three ministers and three policemen testified against relator. The relator presented three witnesses on his behalf and testified himself.

 The Rev. William P. Stevenson testified that he observed the relator on the scene shortly after his arrival at 1:30 A.M. on August 29, 1964. He said that the relator was leading the crowd in chanting and yelling. Reverend Stevenson testified that he saw the relator from 1:30 A.M. when he arrived on the scene until 4:30 A.M. when he left. (Trial Notes 50)

 The Rev. Roland V. Jones testified that he observed the relator sometime after 9:00 P.M. on August 28, 1964. Reverend Jones also stated he saw the relator in the area until "the morning hours, 1 to 2." (Trial Notes 3)

 The Rev. Wrennie Morgan testified that he saw the relator sometime after 12 midnight on August 29 and that the relator stayed there until 9:00 A.M. on August 29.

 All of the above witnesses exhibited a degree of uncertainty in stating specific times at which they observed the relator.

 Officers Reardon and Monahan testified that they saw the relator at about 9:15 P.M. or 9:30 P.M. on August 28, 1964 (Trial Notes 35, 43) Cecil Moore, Esq., who testified for the defense, stated he had seen the relator at 7:30 A.M. or 8:00 A.M. on August 29, 1964. (Trial Notes 61)

 The relator testified to substantially the same facts at both the trial and the habeas corpus hearing on September 26, 1968. Between 11:00 and 12:00 P.M. on August 28 he was taken to the Temple University Hospital Accident Ward. He was released at about 3:15 A.M. He was then allegedly continued in police custody and held at the Seventeenth and Montgomery Police Station until 9:00 A.M. on August 29, 1964. The hospital records which were introduced indicated that relator was admitted at 12:05 A.M. on August 29, 1964 and was released at 3:15 A.M. (Trial Notes 120) The records also indicated that relator was brought to the hospital in Patrol Wagon 2200 of the 22nd Police District in police custody. (There was a large number of persons admitted during the course of the disturbances on the nights of August 28-29, 1964.)

 Other witnesses stated they saw relator at the scene on the evening in question. (Trial Notes 69, 71, 74, 75) The relator admitted his presence at the scene at both the trial and the habeas corpus hearing. (Trial Notes 109, 110) The conflict concerns the time he was present and what he did while there. Contrary to the Commonwealth's witnesses, the relator states that he attempted to control rather than incite the crowds. What relator actually did at the scene of the disorders is, however, not for this Court to decide.

 At trial relator's counsel demanded production of the form "75-48" from the district attorney. Counsel indicated that he had made efforts but had been unable to obtain it. A discussion between the court and counsel was held off the record but there was no resolution or ruling indicated. The request for the form "75-48" was never pursued further by relator's trial counsel as far as this Court knows. Further, it was stipulated at the habeas corpus hearing before this Court that the trial counsel and assistant district attorney would be unable to testify as to what ...


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