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UNITED STATES EX REL. HARRIS v. HENDRICK

June 17, 1969

UNITED STATES of America ex rel. Henry D. HARRIS
v.
Edward HENDRICK, Warden County Prison



The opinion of the court was delivered by: DAVIS

 Before the Court is a petition for a writ of habeas corpus. After a trial by jury in April 1966, the relator was found guilty on all 28 bills of indictment, wherein he was essentially charged with larceny, forgery, and uttering and publishing forged instruments. An aggregate sentence of 20 to 40 months imprisonment was imposed. In November 1967, post-trial motions were denied. In August, 1968, the judgment of the trial court was affirmed, Commonwealth v. Harris, 213 Pa.Super. 714, 244 A.2d 163. In October 1968, the Supreme Court of Pennsylvania denied a petition for allowance of appeal. Then on April 7, 1969, appeal to the U.S. Supreme Court was denied. *fn1" Finally, the relator filed a petition for reconsideration of the sentence. This was denied by the trial judge, on April 30, 1969. During this rather extensive history of litigation, the relator has been free on bail. He commenced serving his sentence on May 5, 1969 but was again granted bail by this Court during the pendency of this proceeding. The four principal allegations of error will be individually considered.

 I.

 Prior to the commencement of his first trial, *fn2" the relator filed a petition to suppress, directed against two separate categories of evidence.

 SEARCH AND SEIZURE.

 The relator had been employed by the Sun Oil Company as a mail driver and mail room clerk, for about five years. Prior to his arrest, Sun Oil Payroll checks which had been drafted in the Philadelphia business office were forwarded through the mail room for distribution to Sun Oil employees throughout the country. An internal security investigation by Sun Oil Company revealed that some of these checks were never received by the payees, but were being fraudulently cashed in the Philadelphia area. *fn3" On January 14, 1963 at about 11:00 A.M. the relator was called into the Sun Oil office and interrogated by five company officials. As a result of the information which the officials elicited from the relator, together with information which the company had obtained from other sources, the Philadelphia Police were notified. At approximately 1:50 P.M. two police detectives arrived. The interrogation then continued until approximately 5:00 P.M. During this session, the relator repeatedly asserted his innocence, although confronted with evidence (albeit largely circumstantial), to the contrary. No polygraph test was administered, although the relator had indicated his willingness to submit to such an examination. One of the police detectives testified that the relator was "obviously nervous and ill".

 During the latter part of the afternoon the police requested the relator to authorize a search of his apartment. The conversation which ensued is reported in 203 Pa.Super. 143, at pp. 146-147, 199 A.2d 290, *fn4" and need not be repeated here. Suffice to say that the relator himself testified that he had no objection to the police searching his apartment. *fn5" The search uncovered some nineteen payroll check stubs and income tax notification slips, all bearing the names of other employees whose checks had been illegally cashed. The relator was then placed under arrest.

 The Commonwealth continues to assert that although the search of the relator's apartment was without a warrant, it was not unlawful, since the relator had freely authorized the police to enter and so proceed.

 In initially granting the motion to suppress, the court reasoned that the relator "was lured into a false sense of security by the repeated statements of his superiors as well as the officers that he was merely assisting in an investigation into the circumstances, and their repeated assurances that he was not under arrest prompted his giving permission to the search of his apartment." (Opinion by Blanc, J. dated February 20, 1964, p. 4). The Court then proceeded to conclude that the "totality of the circumstances" demonstrated that the Commonwealth obtained the relator's permission by "trickery, coercion and duress".

 The Superior Court reversed, holding that "* * * the search and seizure in Harris' apartment was not unreasonable because it was done with his permission, voluntarily given at a time when he was not under arrest". Commonwealth v. Harris, supra, at p. 148, 199 A.2d, at p. 292.

 Our review then, is limited to the question of whether the relator waived his constitutional right in a competent and intelligent manner to be free from an unreasonable search. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). See also Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1969); United States ex rel. Gockley v. Myers, 378 F.2d 398 (3rd Cir., 1967). After independently reviewing the evidence as collectively presented at the relator's suppression hearing, two trials, post conviction hearing and the Federal habeas hearing, we concur in the conclusion of the Superior Court. We cannot perceive of the presence of any "trickery, coercion or duress" on the part of the police. The consent expressed by the relator was manifested in a positive, unequivocal manner; he did not merely acquiesce in the desires of the investigating police. See Bumper v. North Carolina, supra.

 At the suppression hearing the relator responded:

 
Q. From the conference [at Sun Oil Company] you voluntarily went to your apartment, is that correct, after the ...

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