UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: April 24, 1969.
UNITED STATES OF AMERICA EX REL. DANIEL BOLISH, APPELLANT,
JAMES F. MARONEY, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA
Hastie, Chief Judge, and Kalodner and Van Dusen, Circuit Judges. Hastie, Chief Judge (concurring).
Author: Per Curiam
Opinion OF THE COURT
This case challenges the denial of a Petition for a Writ of Habeas Corpus by the District Court order of April 28, 1967. A jury found relator guilty of murder in the first degree (N.T. 843), with the penalty of life imprisonment, in December 1955, and he complains of confinement in accordance with such verdict.*fn1
After a careful review of the record, we have concluded that there is no merit in the contentions raised in subparagraphs 3(a), (c), (d), (e), (f), (g), and (h) of the Petition. See United States ex rel. Almeida v. Rundle, 383 F.2d 421 (3rd Cir. 1967), cert. den. 393 U.S. 863, 89 S. Ct. 144, 21 L. Ed. 2d 131 (1968), and cases cited in footnote 1.*fn2
Also, an examination of the trial record discloses that relator's contention in sub-paragraph 3(b) of his Petition that "the admission and application of past criminal records and testimony thereto" at his trial violated his constitutional rights must be denied. See Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); Rundle v. Johnson, 386 U.S. 14, 87 S. Ct. 847, 17 L. Ed. 2d 695 (1967).*fn3 These decisions make clear that no matter how many prior convictions are involved, their recitation to the jury is immaterial as long as the jury is charged that this evidence is to be considered only with respect to the penalty imposed in the event that the jury finds the defendant is guilty of the crime with which he is charged. The jury was properly charged that this evidence was to be considered only with respect to the penalty imposed in the event they found relator guilty of first degree murder*fn4 (N.T. 823, 827-828).
Applying the rationale of these 1967 decisions to this record, the jury, following the instruction quoted in footnote 4, only considered relator's past criminal record*fn5 in deciding whether his punishment should be death or life imprisonment. In Johnson, supra, where the prosecutor's only evidence of guilt was a confession and re-enactment of the crime by a defendant with a 7th grade education when in custody and without counsel and the jury was informed, prior to returning its guilty verdict and sentence of life imprisonment, of a prior conviction for an offense involving facts with "a striking similarity to the methods used in the present case" (p. 698 of 243 F. Supp.), the Supreme Court of the United States reversed the grant of a petition for a writ of habeas corpus, relying on Spencer, supra.*fn6 See United States ex rel. Johnson v. Rundle, 243 F. Supp. 695 (E.D.Pa.1964), aff'd 349 F.2d 416 (3rd Cir. 1965).
On the issue of the extent of the sentence, the jury was entitled to know of the armed robbery conviction. The error in permitting the jury to know of the other two convictions had no prejudicial effect on its determination of the sentence, since the defendant received the minimum permissible sentence. In this respect, the decision presented by this case differs from that before the court in Burgett v. Texas, supra, where the defendant did not receive the minimum permissible sentence.*fn7 Cf. Chapman v. California, 386 U.S. 18, 21-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
The District Court order of April 28, 1967, will be affirmed.
HASTIE, Chief Judge (concurring).
Were we free from constraint imposed by higher authority, I would find that in the circumstances of this case the introduction of prior convictions into evidence at the petitioner's trial was inconsistent with the due process requirement of fundamental fairness. However, in a similar case presenting an even stronger showing of unfairness and prejudice, United States ex rel. Johnson v. Rundle, E.D.Pa.1964, 243 F. Supp. 695, aff'd. per curiam, 3d Cir. 1965, 349 F.2d 416, the Supreme Court reversed per curiam our allowance of habeas corpus. Rundle v. Johnson, 1967, 386 U.S. 14, 87 S. Ct. 847, 17 L. Ed. 2d 695. That decision, which in my view extends the reach of Spencer v. Texas, 1967, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606, leaves us no alternative but to deny relief in this case.