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UNITED STATES EX REL. BISHOP v. RUNDLE

February 5, 1970

UNITED STATES of America ex rel. Charles BISHOP, H-4971, Petitioner,
v.
A. T. RUNDLE, Supt., Respondent


Fullam, District Judge.


The opinion of the court was delivered by: FULLAM

FULLAM, District Judge.

 Relator, Charles Bishop, was indicted and convicted by jury of the murder of Frances Burrell, and is serving a life sentence.

 The principal item of evidence introduced by the Commonwealth against Bishop at his 1963 trial was a written statement which, though partly exculpatory in that relator denied intending to kill the victim, and contended that the sexual act which preceded the killing was consensual, nevertheless furnished the crucial admission that the relator did have sexual relations with the victim and did strangle her. Since the trial preceded Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A.L.R. 3d 1205 (1964), the statement was received in evidence over objection, the jury being instructed to disregard the statement entirely unless convinced of its voluntariness.

 After the trial, the Commonwealth recognized that Jackson v. Denno, supra, and Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964) mandated a separate determination of voluntariness. At the hearing of this issue, both sides were content to rely upon the record, without additional evidence, and the trial judge forthwith declared the confession to have been voluntary. In due course, an appeal was taken to the Supreme Court of Pennsylvania, and the conviction was affirmed. Commonwealth v. Bishop, 425 Pa. 175, 228 A. 2d 661, cert. denied, 389 U.S. 875, 88 S. Ct. 168, 19 L. Ed. 2d 159 (1967). Therefore, relator has exhausted his state remedies as to those contentions raised before the Supreme Court of Pennsylvania. United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir. 1969).

 In the present habeas corpus petition, relator asserts four grounds for relief:

 
1. His arrest was illegal, and therefore his subsequent confession was constitutionally inadmissible against him.
 
2. His confession was not voluntarily given.
 
3. One of the Commonwealth's experts perjured herself concerning her qualifications.
 
4. Illegally seized real evidence was admitted against him at trial.

 The Legality of the Arrest

 Relator claims that his arrest violated his Fourth Amendment rights because the arresting officers had neither a valid arrest warrant nor probable cause to arrest, and that his written confession was therefore inadmissible at his trial. The Supreme Court of Pennsylvania did not resolve the legality of the arrest, but concluded that even if the arrest were held to be illegal, such illegality would not render the statement constitutionally inadmissible. I have some doubt as to the soundness of that holding, in view of such cases as Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Gatlin v. United States, 117 U.S. App. D.C. 123, 326 F.2d 666 (1966); I therefore deem it necessary to consider whether the arrest was constitutionally valid. Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R. 2d 933 (1964); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).

 Two independent branches of the Philadelphia Police Department were working on the Burrell case simultaneously, the Homicide Division, and the Special Investigation Squad (SIS). On April 6, 1963, the day the relator was picked up for questioning, the SIS knew that the decedent had been receiving telephone calls from a person named "Peanut", that no such calls had been received at the family residence after her disappearance, and that Charles Bishop was one of several persons in the area who was nicknamed "Peanut." The Commonwealth admits that this information did not constitute probable cause to arrest, but contends that no arrest was made when the police took the relator to the station house for questioning. Under all of the circumstances, I shall assume for present purposes that the petitioner was under arrest when he was first picked up. However, no directly incriminating statements were made while the relator was in the custody of the SIS.


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