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United States v. Brierley

decided: May 19, 1972.

UNITED STATES OF AMERICA EX REL. MACKEY RAYMOND CHOICE, APPELLANT,
v.
JOSEPH R. BRIERLEY, SUPERINTENDENT AND DISTRICT ATTORNEY OF PHILADELPHIA COUNTY



Adams, Gibbons and James Rosen, Circuit Judges. Adams, Circuit Judge (concurring).

Author: Rosen

Opinion OF THE COURT

JAMES ROSEN, Circuit Judge.

More than $38,000, was stolen from the Citizens and Southern Bank of Philadelphia on September 22, 1965. Appellant Mackey Choice was arrested for the theft, and was indicted on counts of aggravated robbery, burglary, and conspiracy. His trial before the Quarter Sessions Court of Pennsylvania resulted in his conviction on June 22, 1966 on all three counts.*fn1 A ten to twenty year sentence was imposed for the robbery charge and a twenty year probation period, for the burglary charge. Sentence for the conspiracy conviction was suspended.

Choice pursued his state remedies, but was unsuccessful in obtaining relief from the Pennsylvania courts. On June 1, 1970, having satisfied the requirements of 28 U.S.C. § 2254(b), Choice applied to the district court for a writ of habeas corpus.*fn2 The district judge denied him a 28 U.S.C. § 2254 evidentiary hearing and dismissed the petition. Choice now appeals.

His habeas petition sets forth two due process claims. The first contention is that "the indirect introduction of Mackey Choice's prior criminal record at his trial denied him due process of law." More specifically, the appellant alleges that he was denied a fair trial because the government was allowed to establish that he was arrested at the parole board.

In order to see this claim in the proper light, it is necessary to illuminate the circumstances under which the reference to the parole board was elicited by the government: The fact that Choice was arrested at the parole board was not established during the district attorney's direct examination of the arresting officer. On cross-examination of the officer, in an attempt to convince the jury that it was not Choice who had robbed the bank of the $38,000, the defense proved that Choice had only $2.00 on his person when he was arrested. Then, in order to rebut the exculpatory inference the jury might draw from this testimony, the government established on redirect that Choice had been arrested at the parole board.*fn3

The redirect examination only brought out Choice's presence at the parole board. Neither the fact that he was on parole at the time, nor the fact that he had been arrested seven times previously was called to the jury's attention. Cf. Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948) and United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, 725 (3d Cir. 1967). Despite the context of the remark and its limited scope, Choice now claims that the jury's exposure to the fact that he was at the parole board is reversible error.

In his brief, the appellant concedes that "mere evidentiary errors by a state trial court in the exercise of its jurisdiction cannot be reviewed by federal habeas corpus; federal courts will intervene only where the accused's basic and fundamental constitutional rights have been abridged." This is an accurate statement of the law. A federal habeas corpus proceeding will not review errors in a state court trial unless the errors were so prejudicial as to deprive the defendant of a fair trial or constitute a denial of due process. United States ex rel. Cannon v. Maroney, 373 F.2d 908, 910 (3d Cir. 1967); United States ex rel. Watson v. Yeager, 458 F.2d 23 (3d Cir. filed March 28, 1972).

Even though appellant acknowledges that this is the law, he directs our attention to the Pennsylvania cases of Commonwealth v. Trowery, 211 Pa.Super. 171, 235 A.2d 171 (1967), Commonwealth v. Allen, 212 Pa.Super. 314, 242 A.2d 901 (1968), and Commonwealth v. Bruno, 215 Pa.Super. 407, 258 A.2d 666 (1969) and asks us to reverse the state conviction on their holdings. This we decline to do. These cases do not elucidate the contours of due process, but merely involve a principle of Pennsylvania's law of evidence; a federal court in a habeas petition would normally not pass on such matters. Furthermore, the rule enunciated in these cases was deemed inapplicable to the facts here by the Pennsylvania Superior Court when it affirmed Choice's conviction. Commonwealth v. Choice, 211 Pa.Super. 176, 235 A.2d 173 (1967).

This brings us to the central question: did the admission of Choice's place of arrest deny him due process of law? The foundation for the appellant's claim that he was denied due process is the Supreme Court's comment in Michelson v. United States, supra, 335 U.S. pp. 475, 476, 69 S. Ct. p. 218 that courts "have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt."*fn4 Even assuming that the mention of Choice's presence at the parole board may have suggested a prior conviction to the jury and thus "evil character." Michelson does not support the appellant's contention.

In determining the admissibility of evidence, the circumstances surrounding the introduction of the testimony and the purposes for which it is sought to be introduced are critical. What may not be admissible in one situation, may well be admissible in another. As we said in United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1959) and reiterated in United States v. Carter, 401 F.2d 748 (3d Cir. 1968):

"the general rule, as stated by most courts, is that evidence of other offenses is inadmissible in a criminal prosecution for a particular crime. This rule is qualified by a number of exceptions stated in terms of the capacity of the evidence to prove some specific fact or issue such as intent, plan, scheme or design [citations omitted]. But since the range of relevancy, other than for the purpose of showing criminal propensity, is almost infinite, we think the rule may be phrased a little less mechanically. Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime."

Michelson refers to evidence introduced for the purpose of showing the defendant's evil character and of leading the jury to infer that the defendant was guilty of a particular crime. The language quoted from Michelson condemns such use. Choice does not fall within the ambit of Michelson, however, for any remote implication that Choice had a prior criminal record was not introduced to show evil character. Cf. also United States ex rel. Scoleri v. Banmiller, supra. Choice's presence at the parole board was introduced for the purpose of dispelling an exculpating implication the defendant implanted in the minds of the jurors during his cross-examination of the arresting officer. The defendant opened up the question of the circumstances surrounding his arrest. He can not now claim that it was unfair to allow the government to develop those circumstances further in its attempt to show the jury the complete picture of the events relied upon by the defendant. In short, the reference to the parole board came into evidence ...


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