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UNITED STATES EX REL. OLIVER v. RUNDLE

April 3, 1969

UNITED STATES of America ex rel. John OLIVER
v.
Alfred T. RUNDLE, Supt.



The opinion of the court was delivered by: WOOD

 WOOD, District Judge.

 Relator was found guilty by a jury of burglary and rape on July 6, 1967. His motions for arrest of judgment and new trial were dismissed, and he was sentenced to a term of not less than 10 nor more than 20 years on each sentence, the terms to run concurrently. After exhausting his state remedies, *fn1" relator has applied to this Court for a writ of habeas corpus. The sole question raised is whether relator was denied his right to confrontation of witnesses against him under the Sixth Amendment when the trial court admitted the testimony of a juvenile co-defendant at the preliminary hearing after a showing that such co-defendant was not available to testify in person at the trial. Although we consider the issue raised to be a very serious one, after a full examination of the state proceedings *fn2" in this case, we have concluded that relator's petition must be denied.

 To fully understand the substance of relator's claim it is first necessary to review the relevant history of the case and the applicable legal standards. Relator and three juveniles allegedly forced the prosecutrix to have sexual intercourse against her will on January 1, 1967. After the alleged attack, the prosecutrix went to the police and relator was arrested shortly thereafter. A preliminary hearing was held on January 6, 1967 in the County Court of Philadelphia. The following colloquy occurred at that hearing:

 
"Mr. Bernsee [district attorney]: Your Honor, at this time this is a preliminary hearing as to Mr. Oliver. The Commonwealth rests, and asks you to hear the case concerning the other gentlemen - the juveniles.
 
* * *
 
"The Court: The District Attorney has now concluded the preliminary hearing as to Mr. Oliver, and he wants to now proceed with the juveniles.
 
* * *
 
"Mr. Cortese [counsel] for Mr. [Oliver]: Your Honor, I think that since allegedly everything happened here involves all of these defendants, and is supposed to have happened at the same time, I think that in the interest of Justice the defendant [i.e. relator] should be present at every moment of this proceeding.
 
"The Court: All right, as far as the preliminary hearing, he has been heard. However, if you want me to continue the evidence in this case in so that it may be used in regards to John Oliver, and give you a chance to cross-examination, I will do so. I realize this is a serious charge and I will do that at your request.
 
"Mr. Cortese: I so request.

 The Court then proceeded to hold a hearing for the juveniles who were allegedly relator's accomplices. The first hearing concerned one Wilbert Herring, one of relator's co-defendants. Mr. Cortese, relator's counsel, cross-examined Herring, after he was cross-examined by the District Attorney, as to the events that occurred and the parts played by Herring and relator. Subsequently, Oliver was bound over to the Grand Jury, and Herring was declared a juvenile delinquent and sent to the Youth Study Center at Fort Mifflin, but escaped on March 8, 1967.

 By the time of relator's trial, Herring had still not been apprehended. The Commonwealth introduced evidence to show that it was not responsible for his escape, and that it had made diligent efforts to locate Herring for two months prior to trial. The Commonwealth therefore introduced over the objections of ...


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