The opinion of the court was delivered by: GOURLEY
Petitioner was indicted for murder at No. 13 O & T January Sessions in the Court of Common Pleas of Allegheny County, Pennsylvania. Upon trial by jury, he was convicted of murder in the first degree and sentenced to life imprisonment. No appeal was taken, petitioner having voluntarily withdrawn his Motion for New Trial.
In 1966, present counsel for petitioner filed in the Court of Common Pleas of Allegheny County a Post-Conviction Hearing Act Petition asserting therein that petitioner had been denied a fair trial due to alleged adverse pre-trial publicity and an alleged "carnival" atmosphere at his trial. Upon an Answer being filed by the Commonwealth, the Court of Common Pleas dismissed the Petition without hearing, reasoning that petitioner had waived his right to a new trial by having previously withdrawn his motion for the same at trial. On appeal from the dismissal of petitioner's Post-Conviction Hearing Act Petition, the Supreme Court of Pennsylvania affirmed. In affirming, the Supreme Court confirmed the existence of a waiver and, alternatively, determined that petitioner had not been denied a fair trial.
This Court is confronted with the same issues decided by the Supreme Court of Pennsylvania. With respect to the question of waiver, this Court is bound to make an independent determination, applying federal standards. A waiver of a constitutional right must be knowingly and understandingly made and every presumption against a waiver must be indulged. United States ex rel. Bolognese v. Brierley, 412 F.2d 193, 3d Cir., decided May 28, 1969.
The evidentiary hearing conducted in this Court has afforded petitioner his first opportunity to rebut the statutory presumption of waiver applied by the State Courts. It is argued on behalf of petitioner that petitioner in 1958 could not waive the constitutional rights "created" by the subsequent decisions of the Supreme Court of the United States in Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), for the reason that these constitutional rights were unknown to him at the time of trial.
At the time of petitioner's trial in 1958, the constitutional right to fair trial encompassed a well established guarantee against the intrusion of prejudicial public sentiment. But whether the right to fair trial also contemplated a guarantee of freedom from the disruptive influences of telecasters and other reporters within the courtroom was then in doubt. A criminal defendant may not be deemed to have waived a right the existence of which was then doubtful. United States ex rel. Allison v. New Jersey, 418 F.2d 332, 3d Cir., decided October 29, 1969. Indulging every presumption against waiver and giving petitioner every benefit of doubt, the Court finds that he did not waive his right to assert the alleged conjunctive influence of pre-trial publicity and the courtroom atmosphere upon his trial.
Pursuant to Section 2254 of Title 28 of the United States Code, this Court, upon being satisfied of the adequacy of the fact-finding process in the State post-conviction proceedings, may adopt the findings therein. However, in this proceeding, I believe the better practice should be for this Court to make its own independent findings and conclusions.
Petitioner proffered for review by the Supreme Court of Pennsylvania newspaper articles already introduced in evidence in the original criminal proceedings and other portions of the original record, in order to substantiate the assertion of prejudicial pre-trial publicity. In an effort to fill a relative void in publicity occurring during the three months prior to the sequestration of the jury for trial, petitioner has introduced in the evidentiary hearing in this Court two additional newspaper articles which report the State's exercise of protective custody over an accomplice on February 25, 1958 and the guilty pleas of two other accomplices on March 5, 1958, both of which appeared within two weeks of the trial commencing on March 11, 1958. The Court finds that these newspaper articles, standing alone or when considered with the other publicity already in evidence, did not constitute publicity of a quality and/or quantity such as to threaten a fair trial of petitioner.
In addition, to support his contention that there existed a carnival atmosphere in the courtroom during his trial, petitioner testified at the evidentiary hearing in this Court that a continual din of noise existed among the spectators at the rear of the courtroom. Considered alone or together with the evidence placed before the Supreme Court of Pennsylvania, the Court finds no basis for a conclusion that petitioner's right to a public trial became distorted into a deprivation of his right to a fair trial by virtue of any intrusions into the courtroom in the nature of those proscribed by recent Supreme Court decisions.
The facts newly adduced at the evidentiary hearing in this Court upon the question of the fairness of petitioner's trial dictate the application of no reasoning different from that applied by the Supreme Court of Pennsylvania. The Court finds that the Supreme Court of Pennsylvania has correctly applied the principles of the Fourteenth Amendment and is wholly in accord with the result reached by that Court.
In a habeas corpus proceeding, which is a civil action, the burden of proof is on the prisoner petitioner to establish his right to relief by the fair preponderance or the weight of all the credible evidence and from the reasonable deductions and inferences which can be drawn therefrom.
In my considered judgment based on and after a most meticulous review and consideration of all the State Court records, trial and appellate, the oral and documentary evidence introduced in this Court, the reasonable inferences or deductions which can be drawn therefrom, the stipulation of the parties, the briefs of counsel, arguments, suggested Findings of Fact and Conclusions of Law and our own independent research, the Court is of the opinion and so concludes that the petitioner prisoner has not met the burden of proof that he is entitled to the granting of a Petition for Writ of Habeas Corpus and/or in the alternative a new trial.
In addition to adopting as Findings of Fact statements made in the body of this opinion, the Court enters the following additional Findings of Fact.
1. On November 17, 1957, Elizabeth Ensinger, 84 years of age, was beaten to death in her home in the Oakland district of Allegheny County, Pennsylvania.
2. Implicated in the crime were the petitioner, Michael Popovich, Frank Zaffina, William Garrison and Ann Garrison, his wife.
4. Petitioner was indicted at No. 13 January Sessions, 1958, Criminal Courts of Allegheny County, Pennsylvania, on a bill charging Murder and Voluntary Manslaughter.
5. Michael Popovich was indicted for murder at No. 11, January Sessions, 1958, Oyer & Terminer of Allegheny County, Pennsylvania. He entered a plea of guilty on March 5, 1958, and was sentenced to life imprisonment on May 23, 1958.
6. Frank Zaffina was indicted for murder at No. 14, January Sessions, 1958, Oyer & Terminer of Allegheny County, Pennsylvania. He entered a plea of guilty on March 5, 1958, and was sentenced to life imprisonment on May 23, 1958.
7. Petitioner was initially represented by retained counsel, Pearce O'Connor, Esquire and subsequently by retained counsel Alexander Cooper, Esquire, Marjorie Hanson Matson, Esquire, and Melvin Swartz, Esquire. One of said attorneys was a former State trial judge, and each were and are most ...