engage the services of a psychiatrist and a psychologist. The court granted the request for a psychiatrist, but denied it as to a psychologist. Relator now alleges that the denial of his motion for funds to retain a psychologist deprived him of the effective assistance of counsel and due process because psychological tests were necessary to his insanity defense. To reinforce his position, relator notes that the Commonwealth was permitted to introduce evidence of psychological tests administered by its psychologist.
An accused is entitled, at least in capital cases, to the assistance of experts necessary to adequately prepare a defense. See Bush v. McCollum, 231 F. Supp. 560 (N.D. Texas 1964), aff'd 344 F.2d 672 (5th Cir. 1965). This does not mean, however, that the state must promote a battle of experts. McGarty v. O'Brien, 188 F.2d 151 (1st Cir.), cert. denied, 341 U.S. 928, 71 S. Ct. 794, 95 L. Ed. 1359, reh. denied, 341 U.S. 957, 71 S. Ct. 1005, 95 L. Ed. 1378 (1951). Under Pennsylvania law, the granting of funds for the hiring of experts is committed to the trial court's discretion, 19 P.S. § 784; Commonwealth v. Phelan, 427 Pa. 265, 234 A. 2d 540 (1967), cert. denied, 391 U.S. 920, 88 S. Ct. 1803, 20 L. Ed. 2d 657 (1968), and its decision will not be overturned except for a clear abuse of discretion which prejudices the accused's right to the effective assistance of counsel. See United States ex rel. Phelan v. Brierley, 312 F. Supp. 350 (E.D. Pa. 1970); Commonwealth v. Phelan, supra.
Although it would appear, at first blush, that the court's refusal to authorize the hiring of a psychologist was prejudicial to Dessus, a closer examination of the trial record reveals that it was not. The results of psychological testing would have been of value only to aid the psychiatrist to form an opinion as to Dessus' sanity at the time the crime was committed. At trial Dr. James D. Nelson, the psychiatrist retained by relator, stated that he had utilized psychological tests administered to relator a few years prior to the trial by the Philadelphia Board of Education, and that he needed no further tests to aid him in forming his opinion as to relator's sanity. Under these circumstances the denial of funds did not deprive Dessus of the effective assistance of counsel.
See McGarty v. O'Brien, supra.
(b) Funds to Investigate Prospective Members of the Grand Jury.
Prior to trial, Dessus moved pursuant to 19 P.S. § 784 for funds to hire an investigator to inquire into the background of prospective members of the grand jury to determine if any such person was biased or prejudiced toward him. The motion was denied. Dessus now contends that the failure to provide funds for such an investigation denied him due process and the equal protection of the laws by depriving him of the only practical method by which he could challenge individual grand jurors for cause under Rule 203, Pa. R. Crim. P., 19 P.S. Appendix.
Valid grand jury selection "is a constitutionally protected right." Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77 (1955). Due process, however, requires only that the jury be selected in accordance with law [See United States v. McKay, 45 F. Supp. 1007 (E.D. Mich. 1942)] and that the accused be given an opportunity to challenge the array of jurors or an individual member for failure to meet the legal qualifications outlined by statute. See Reece v. Georgia, supra; United States v. Knowles, 147 F. Supp. 19 (D.D.C. 1957). The equal protection clause of the Fourteenth Amendment merely requires that there be no systematic discrimination in the selection of grand jurors based on unwarranted classifications such as race or color. See Reece v. Georgia, supra; Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975, 87 S. Ct. 1169, 18 L. Ed. 2d 135 (1967) reh. denied, 386 U.S. 1043, 87 S. Ct. 1489, 18 L. Ed. 2d 618 (1967).
Neither federal nor state law permit an investigation of prospective members of a grand jury to determine possible bias since neither federal nor state law permit a challenge for cause on such grounds. See United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff'd, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), reh. denied, 386 U.S. 940, 87 S. Ct. 970, 17 L. Ed. 2d 880 (1967) and 386 U.S. 951, 87 S. Ct. 970, 17 L. Ed. 2d 880 (1967); Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied, 379 U.S. 964, 85 S. Ct. 656, 13 L. Ed. 2d 559 (1965), reh. denied, 380 U.S. 926, 85 S. Ct. 884, 13 L. Ed. 2d 814 (1965); United States v. Knowles, supra; Commonwealth v. Dessus, 214 Pa. Super. 347, 257 A. 2d 867 (1969). Consequently, Dessus was not deprived of due process or the equal protection of the laws by the state court's refusal to permit him to hire an investigator to inquire into the background of prospective members of the grand jury.
(c) Motion for Continuance.
The right to a trial by jury includes the guarantee that an accused will be given a fair trial by a panel of impartial jurors. Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965). A jury's verdict must be based on the evidence presented in the course of trial, and not on the extraneous commentary presented in the forum of public opinion by the news media. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). If a juror's decision has been influenced by inflammatory news reports prior to trial, an accused has been deprived of a fair trial, and due process requires a reversal of such a conviction. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
Relator has argued both here and in the state courts that the pretrial publicity surrounding the case was so prejudicial as to require a continuance. More specifically, he argues that the opening of his trial on the heels of the trial of a co-defendant who was found guilty of first degree murder and sentenced to death, and the publicity surrounding that trial, required the court to grant a continuance.
I find relator's argument without merit.
A motion for continuance is directed to the discretion of the trial court. The trial court's decision on this subject will not be disturbed unless the error is manifest. Irvin v. Dowd, supra. The publicity complained of was not "inherently prejudicial." See Sheppard v. Maxwell, supra; Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). It appears to have been the kind of publicity one would expect to attend any such gruesome crime. As noted in the trial records, for example, the news reports during the voir dire contained mostly factual data as to relator's alleged complicity in the crime and the number of jurors selected.
Since the publicity was not inherently prejudicial, it is relator's burden to show "identifiable prejudice." From a thorough examination of the voir dire I am satisfied that relator was tried by an impartial jury. The trial court sustained challenges for cause for all prospective jurors who had even heard of the fate of a co-defendant. Of the jurors finally selected not one had read of the case since the time of the crime almost a year earlier. Furthermore, all jurors selected testified under oath that they would base their decision only on the evidence presented in court and disregard whatever they might have heard or read about the incident prior to trial. This is all that due process requires. Irvin v. Dowd, supra. The trial court's denial of the motion for a continuance did not deprive Dessus of due process of law.
During the trial, the court permitted newsmen to sit inside the bar of the court. Dessus contends that this conduct, coupled with the extensive pretrial publicity surrounding the case, seriously prejudiced his right to a fair trial. He relies upon Sheppard v. Maxwell, supra., in which the Supreme Court specifically condemned the practice of permitting newsmen inside the bar of the court.
No objection was made concerning the newsmen until the middle of the second week of trial. Until then, the trial judge was apparently oblivious to the presence of the newsmen. When the matter was brought to the court's attention, he expressed his view that Dessus had waived the right to object by the delay.
A waiver is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). Defense counsel was familiar with the holding in Sheppard v. Maxwell, supra, and was conscious of the fact that newsmen were seated within the bar of the court for over a week. The trial judge, on the other hand, was not aware of the Sheppard ruling. Under the circumstances, counsel's failure to act waived whatever objection might have been raised with respect to the seating of the newsmen for the first week and a half of trial. When the matter was belatedly brought to his attention, the trial judge denied the request to have the newsmen removed from the bar of the court for fear that the jurors might become suspicious when they noticed the change. This was quite proper under the circumstances. See Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962). The trial court also noted that the number of newsmen at no time exceeded three or four, that they were seated at an inconspicuous table on the opposite side of the room from the jury and that they had not disrupted the proceedings in any way. Under these circumstances, relator was not prejudiced by the presence of the newsmen inside the bar of the court. See Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). Cf. Sheppard v. Maxwell, supra.
(e) Refusal of the Court to Permit Questioning of Prospective Members of Petit Jury on Their Knowledge of the Fate of a Co-defendant.
During the first day of the voir dire, a prospective juror admitted reading quite a bit about the case in the newspapers. The trial judge refused to permit defense counsel to question him or other prospective jurors concerning their knowledge of the fate of a co-defendant, John Burgess, who had recently been convicted for first degree murder. On the following day, the court reversed its ruling, permitted such questioning and granted a challenge for cause for any prospective juror who recalled the outcome of Burgess' trial. The juror who had acknowledged, on the first day of voir dire, having read about the case, was excused by the exercise of a peremptory challenge by the defense.
Dessus was not harmed by the court's first day ruling. True he used a peremptory challenge to strike the juror who had read of the case, but he wasn't prejudiced by the loss of a peremptory strike, for at the conclusion of the striking process, he still had one peremptory challenge left. Further, the trial judge noted that if the defense desired additional peremptory challenges he would review the situation as to the particular juror sought to be stricken.
(f) Change of Plea.
At his arraignment some six weeks prior to trial, Dessus pled guilty to two counts of Indictment No. 283 charging him with assault and battery and aggravated assault and battery on Lena Alexandroff, and pled not guilty to all other charges. The conceded purpose of this strategy was to enable him to plead autrefois convict to the murder indictment at the time of trial. At the close of the voir dire, the Commonwealth moved to have the guilty pleas set aside and Dessus re-arraigned on those charges. After some argument, the trial judge ordered the guilty pleas stricken, and pleas of not guilty entered.
Relator now contends that the rearraignment conducted prior to trial violated his rights to the due process of law in two ways: (1) the ten day waiting period prescribed by Rule 317, Pa. R. Crim. P., between arraignment and trial was not adhered to, thus leaving relator without adequate notice or time to prepare for trial, and (2) members of the petit jury were not questioned about their knowledge of the prior arraignment.
The purpose of an arraignment is to inform the accused of the charges against him so that he might have an opportunity to plead thereto and prepare for trial. See United States ex rel. Phelan v. Brierley, supra; Yodock v. United States, 97 F. Supp. 307 (M.D. Pa. 1951). Rule 317 merely codifies this concept into the Pennsylvania criminal law. See Commonwealth v. Dessus, 214 Pa. Super. 347, 257 A. 2d 867 (1969). Dessus was certainly aware of the charges against him. Further, at the arraignment, the presiding judge expressed serious doubt about the propriety of the guilty plea to the assault charges. Under the circumstances, in light of the provisions of Rule 320, Pa. R. Crim. P., under which every accused is put on notice that a plea may be rejected, Dessus and his counsel must certainly have been aware of the likelihood that they would be called upon to defend against those charges as well as all the others.
As to relator's complaint that the jurors were not questioned about their knowledge of the prior arraignment, the voir dire examination indicates that not one juror selected had either read or heard about Dessus since the time the crime was committed almost a year earlier. The arraignment at which the guilty plea was entered was held approximately six weeks prior to trial. The jurors' responses to the voir dire establish that they had no knowledge of the prior arraignment and therefore could not have known of the guilty plea.
(g) Charge of Insanity.
The trial judge instructed the jury that insanity was an affirmative defense and that the accused had the burden of proving by a fair preponderance of the evidence that he was insane at the time the crime was committed. Relator now contends that the court's charge deprived him of due process of law because a defendant in a criminal trial never has the burden of proof.
Federal law does not require that the state take upon itself the burden of proving the sanity of an accused, nor does it prescribe any rule regarding the defendant's burden of proof on such an issue. This is a state matter. Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). In the instant case, the charge of the court was in accordance with Pennsylvania law [ Commonwealth v. Updegrove, 413 Pa. 599, 198 A. 2d 534 (1964); Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611 (1927)] and the provisions of Pennsylvania law in that regard do not offend due process.
4. Trial Rulings.
Relator's remaining contentions (items 4 a-e, see p. 415 supra) are purely questions of state law without constitutional significance and hence, are not cognizable in this court on a petition for writ of habeas corpus. See, e.g., United States ex rel. Greer v. Pate, supra ; Reese v. Cardwell, 410 F.2d 1125 (6th Cir. 1969); Williams v. Peyton, 297 F. Supp. 857 (W.D. Va. 1969); United States ex rel. Jablonsky v. Follette, 291 F. Supp. 828 (S.D.N.Y. 1968); United States ex rel. Lopinson v. Bookbinder, 237 F. Supp. 180 (E.D. Pa. 1964). Nor is the cumulative effect of these alleged errors so conspicuously prejudicial as to amount to a denial of a fair trial. United States ex rel. Cannon v. Maroney, 373 F.2d 908 (3d Cir. 1967). In any event, I agree with the Pennsylvania Superior Court that relator's arguments on these points are without merit. See Commonwealth v. Dessus, 214 Pa. Super. 347, 257 A. 2d 867 (1969).
The petition for writ of habeas corpus will be denied without an evidentiary hearing.
This 29th day of June, 1970, it is ordered that the Petition of Ronald James Dessus for Writ of Habeas Corpus is denied.
There is probable cause for appeal.