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November 2, 1971

Joseph R. BRIERLEY, Supt.

Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 In this application for writ of habeas corpus brought by a state prisoner presently incarcerated in the Pennsylvania Western Correctional Institution at Pittsburgh under a sentence for a term of 10-20 years following conviction of second degree murder in the Court of Common Pleas of Erie County, Pennsylvania, we feel impelled to grant the writ. We have concluded to do so because we are bound by the decision of the Supreme Court of the United States in Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968).

 Applicant's sentence stems from his conviction in connection with the murder of Nicholas Fytikas, the operator of an establishment known as Steve's Dinor in Erie who was shot to death during a holdup in his place of business on April 27, 1967. Four persons were charged with the crime.

 Petitioner has presented to this court five reasons why the writ of habeas corpus should be granted. He had previously presented the same five points to the Court of Common Pleas and to the Supreme Court of Pennsylvania who overruled them and affirmed his conviction. Commonwealth v. Collins, 436 Pa. 114, 259 A. 2d 160 (1969). Since these same five points had previously been presented to the state courts, we concluded that petitioner had exhausted his state remedies under the decision of the Court of Appeals for the Third Circuit in United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969). Application to the U.S. Supreme Court for certiorari is not necessary. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Under these circumstances, it was not necessary for petitioner to again go through the vain procedure of presenting a petition under the Pennsylvania Post-Conviction Hearing Act. We, therefore, ordered an evidentiary hearing with respect to this matter which was duly held on Friday, September 10, 1971, at Erie, Pennsylvania. At this hearing ample opportunity was given petitioner and his counsel to present such evidence as they deemed necessary. We have concluded that four of petitioner's reasons for setting aside his conviction and granting the writ of habeas corpus are baseless as far as this court is concerned.

 One: The Recantation of Stanyard's Testimony. Following petitioner's trial, Stanyard who had been the main witness against him sent a letter to petitioner's attorney that his testimony against petitioner was not true and stating contrary to his testimony at trial that the last time he had seen petitioner prior to the commission of the crime was when petitioner gave him a ride to 18th and Parade Streets, Erie, Pennsylvania, approximately two blocks from the scene of the first holdup committed by Stanyard that evening. Stanyard stated that was the last time he had seen petitioner or the other two alleged culprits. He claims he had testified under promises that if he brought in Collins and the other two, he would not get a heavy sentence.

 The matter of this letter was thoroughly considered by the Court of Common Pleas and by the Supreme Court of Pennsylvania. Stanyard testified he had been forced to write this letter under duress. It is the general rule that such repudiations are viewed with suspicion and as stated by the Supreme Court of Pennsylvania in this case, this evidence was not likely to produce a different result here, since Stanyard later repudiated his repudiation. Commonwealth v. Collins, supra.

 The weight to be given such statements is exclusively a matter for the discretion of the trial judge and does not raise any constitutional issues. See United States v. Stewart, 445 F.2d 897 (8th Cir. 1971).

 Two: Permitting Jury to Find Petitioner Guilty of Second Degree Murder. Petitioner contends since he was charged with felony murder (here murder in the course of commission of a robbery under Pennsylvania Law 18 Purdon's Pa. Stat. 4701) it was improper for the court to charge the jury that they could find him guilty of second degree murder. His position is that the jury should have been told that they should either find him guilty of first degree murder or find him not guilty. Petitioner argues that since he was charged with first degree murder, he had to be found guilty of this or nothing. The argument in this respect was thoroughly refuted by the Supreme Court of Pennsylvania and it was pointed out that the jury has always been permitted under Pennsylvania Law to exercise its prerogative of mercy. We see nothing in the Federal Constitution which prevents the jury under State law from exercising such prerogative. Certainly, if this were not the law, many people charged with first degree murder in Pennsylvania would long since have gone to the electric chair or to life imprisonment had the jury not extended mercy and found them guilty of second degree murder. We do not see that petitioner had any complaint on this score under the Federal Constitution.

 Three: Competency of Stanyard to Testify. Petitioner contended that Stanyard, who was the main witness against him, was a sociopathic or psychopathic liar and that the court should have declared him incompetent to testify for this reason. The lower court thoroughly reviewed all the testimony with respect to Stanyard's competency in this respect and the Supreme Court held that the matter of competency is in the first instance for the trial judge and after his determination of competency the matter is properly left for the jury to determine whether the witness is telling the truth or not. Again, we see no violation of the Federal Constitution in the Pennsylvania procedure with respect to this matter.

 Four: Line-Up Identification. Stanyard at first failed to identify petitioner when shown him through a window in the county jail. This case was tried before the decisions in Gilbert v. Calif., 384 U.S. 985, 86 S. Ct. 1902, 16 L. Ed. 2d 1003 (1967) and United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), decided by the United States Supreme Court on June 12, 1967. These cases required defendant to have counsel present when required to stand in a lineup. In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), it was ruled that the requirement of presence of counsel at a lineup applies only to confrontations after June 12, 1967. Confrontations here occurred on April 27 and April 29, 1967, and, therefore, the rules of Gilbert and Wade do not apply. Stanyard and petitioner were together for some hours on April 26, 1967, prior to the first robbery committed by Stanyard, that of the Spur Gas Station at 16th and Parade Streets, Erie. Stanyard's identification consequently was not based solely upon lineup confrontations, but also on an independent source, viz.: his prior opportunity to observe the petitioner. See Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970); United States v. Levi, 405 F.2d 380 (4th Cir. 1968); Ackerman v. Scafati, 328 F. Supp. 386 (D.C. Mass. 1971); Denny v. Anderson, 329 F. Supp. 945 (D.C. Del. 1971). The failure of Stanyard to identify Collins when he first viewed him through the window in the Erie County jail certainly cast doubts on his credibility, but that would be for the jury.

 Five: Use of Wrongfully Obtained Statement as Harmless Error. We accept the determination of the Supreme Court of Pennsylvania that the so-called waiver signed by petitioner before questioning about his participation in the crime was ineffective under Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and should have been suppressed by the lower court. *fn1" We disagree, however, with the Supreme Court's conclusion that this was harmless error.

 The statement was quite damaging to appellant in that he admitted he had picked up Stanyard that evening and drove him to 18th and Parade Streets, Erie, Pennsylvania. This placed petitioner within two short blocks of the Spur Gas Station at 16th and Parade Streets which was Stanyard's first holdup of the evening before continuing his nefarious travels to ...

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