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UNITED STATES EX REL. HODGE v. MAZURKIEWICZ

September 9, 1969

UNITED STATES of America ex rel. William H. HODGE, Jr.
v.
Joseph F. MAZURKIEWICZ, Supt



The opinion of the court was delivered by: BODY

MEMORANDUM AND ORDER

Relator was tried without a jury on charges of burglary, larceny, and receiving stolen goods under Indictment No. 747, June Sessions, 1965, in the Court of Quarter Sessions of Philadelphia County. On August 16, 1965, at the conclusion of a one-day trial, he was found guilty of burglary and larceny; at the same time a demurrer was sustained as to the count charging receipt of stolen goods. Subsequently, relator was sentenced to 3-12 years on the burglary count and was placed on probation for a period of five years, beginning at the expiration of the burglary sentence, in connection with the larceny charge. No post-trial motions were filed and no appeal was taken.

 On July 31, 1967 relator filed a petition in the state courts under the Post Conviction Hearing Act, which petition was amended in November 1967. On December 14, 1967 this petition was dismissed and relator was granted leave to file post-trial motions for a new trial and in arrest of judgment nunc pro Tunc. Said motions were filed and argued for defendant by able appointed counsel but were denied in a written opinion by Judge Sloane dated June 27, 1968. The Superior Court of Pennsylvania affirmed the denial, 213 Pa.Super. 751, 246 A.2d 914 (No. 725 October Term, 1968) and allocatur was denied by the Supreme Court of Pennsylvania on February 7, 1969 (No. 460-A Miscellaneous Docket No. 16).

 In his petition for writ of habeas corpus, relator urges the following as grounds for his alleged illegal detention:

 (1) There was no evidence to support his state conviction;

 (2) Reference made by the judge at relator's sentencing to testimony given at his preliminary hearing by a witness not called by the prosecution at trial, constituted a deprivation of relator's right to be confronted with witnesses against him in violation of the Due Process Clause of the Fourteenth Amendment;

 (3) Said reference made by the judge at relator's sentencing constituted such fundamental unfairness as to be violative of due process of law;

 (4) Said reference made by the judge resulted in the denial of relator's right to the effective assistance of counsel at trial;

 (5) The denial of relator's motion for a new trial and in arrest of judgment resulted from such fundamental unfairness, trickery, and underhanded methods as to deprive him of due process of law and the effective assistance of counsel;

 (6) The failure of the court to appoint counsel to represent relator at his preliminary hearing constituted a denial of relator's right to counsel under the Sixth Amendment as incorporated in the Fourteenth Amendment.

 At the outset it can be stated that relator's contention that he was denied the effective assistance of counsel both during and after his trial is patently frivolous and without merit. Regardless of the propriety of the judge's reference at sentencing to testimony given at the preliminary hearing, and the subsequent denial of relator's post-trial motions, they could not have produced the collateral effect claimed by relator.

 We pass then to a consideration of the propriety of the judge's reference at sentencing to testimony given at the preliminary hearing. At his trial relator had the right to confront the witnesses against him ( Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)). Had the reference now under consideration been made at that juncture, a serious constitutional question would have been presented. That, however, is not this case. Here the reference was made at relator's sentencing, a separate proceeding held almost four months after the trial had terminated. Moreover, no part of the testimony in question was introduced into evidence at the trial. It follows, then, that relator was not denied his constitutional right to be confronted by the witnesses against him. Further, judges are given broad latitude in the sources they may consult and in the content of the remarks they may make in connection with imposing sentence in a criminal case. Such a remark as was here made was neither improper per se, nor did it evidence examination of an impermissible source of information for that purpose.

 Relator also alleges that the denial of his post-trial motions was tainted with such fundamental unfairness as to deny him due process of law. From his explanation of this contention it is obvious that relator is merely seeking another vantage point from which to attack the aforementioned reference made at sentencing and the trial judge's failure to grant a new trial or arrest judgment on that basis. In view of this Court's holding concerning the propriety of the reference, relator's present contention must also fail.

 A further ground advanced for the illegality of relator's detention is that there was a total lack of evidence to support his state conviction. In considering this contention it is important to note that if the record contains any evidence which supports the conviction, this Court is obligated to uphold it. See United States ex rel. Simmons v. Pennsylvania, 292 F.Supp. 830, 833 (E.D.Pa.1968) and cases there cited. To permit a further inquiry in a federal habeas corpus proceeding would be 'to improperly ...


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