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United States v. Rundle


May 30, 1973



Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges


Per Curiam:

Alfred T. Rundle (Superintendent of a Pennsylvania prison) appeals from a district court order granting appellee George Paxos a writ of habeas corpus entered after an evidentiary hearing. See United States ex rel. Paxos v. Rundle, 337 F. Supp. 315 (E.D. Pa. 1971).

Appellee and two co-defendants had been found guilty by a jury on February 23, 1968 of conspiracy to commit burglary and robbery, of two counts of aggravated robbery, and of burglary with intent to commit robbery. Post-trial motions filed on behalf of all defendants were argued and denied. Appellee received a total prison sentence of two to ten years on all four charges. The Superior Court of Pennsylvania unanimously affirmed judgment of sentence without an opinion. Commonwealth v. Paxos, 217 Pa. Super. 734, 268 A.2d 148 (1970). The Supreme Court of Pennsylvania then denied a petition for allocatur.

The charges arose from the robbery and terrorization of a family from 5:00 to 9:30 a.m. one day in 1967.*fn1 At trial, the state's case against appellee consisted primarily of identification testimony. Although the robber alleged to be appellee wore a stocking as a mask at all times, both Mr. McNally and his thirteen year old son identified appellee as the robber. A neighbor of the McNallys also testified that he had seen appellee outside of the McNally home at 8:15 a.m., talking with one of the co-defendants. Additionally, the state produced a witness who testified that a fingerprint found on a cup in the McNally home was that of appellee.

While neither of appellee's co-defendants offered any defense whatsoever, appellee produced eight alibi witnesses, all of whom testified that appellee was at work between 7:30 and 8:00 a.m. of the morning in question. He also produced an expert witness, the author of the FBI fingerprint manual, who testified that the state's fingerprint did not belong to appellee. Credibility thus became a key issue.

To support his alibi that he was at work when the crime was being committed, appellee, through an official of the company by whom he was employed, introduced company time sheets which indicated that he was at work on the day in question. As found by the district court:

"The time sheets also indicated the number of hours worked by the other employees of Hershman's.*fn2 After the defense had rested, the district attorney reviewed the time sheets and discovered that they contained no notation of any working hours on May 4 for George Tancini, one of relator's alibi witnesses. Prior to that time neither the prosecutor nor defense counsel was aware of this fact.

"The district attorney then contacted Iris Felman a bookkeeper at Hershman's, and asked if she would testify on rebuttal that although George Tancini had testified that he saw relator at work on the day of the robbery, the time sheets indicated that he himself was not at work. Miss Felman stated that she could not so testify until she reviewed Tancini's payroll records for the week following the robbery. Upon reviewing these records, she discovered that Tancini was paid the following week for the day of the robbery. She concluded that he had merely been late in turning in his daily time sheets to the paymaster and that he was at work on May 4. The district attorney advised her that under the circumstances he would not call her to testify. He then told relator's attorney about the time sheets, the payroll records, his conversation with Miss Felman and his decision not to call her as a rebuttal witness."

After both sides had made their closing arguments to the jury, the prosecutor, in his rebuttal argument,*fn3 accused the defense witness whose time records were missing of having committed perjury because his time sheet for the day in question was incomplete when the prosecutor knew from his interview with the company's bookkeeper that there were other company time records that would have verified the witness' presence at work. Unfortunately, none of the closing arguments of counsel were transcribed in this case so we cannot be sure exactly what the prosecutor said.

The district court judge stated that the prosecutor argued to the effect that "the time sheets in evidence showed that George Tancini was not at work on the day of the robbery and that the jury could infer that he committed perjury when he testified that he saw relator at work on that day." United States ex rel. Paxos v. Rundle, supra at 317. When he objected at trial to the prosecutor's argument, appellee's attorney said: "[The prosecutor] made note to the jury... that the records show that Tancini did not work Thursday and Friday, and that 'If there is no explanation of that, you can infer that there was perjury committed by Mr. Tancini and the other alibi witnesses.'" N.T. 1884-85. The trial judge, at the same juncture, summarized the argument more succinctly:

"THE COURT: In effect, what he is saying is, 'This record will show' - from my recollection of what he said - 'This record will show that one of the alibi witnesses was lying.'

"Instead of using the word 'lying,' he used 'perjured himself.'

"I see no difference."

It is clear that regardless of the exact language which he used, the prosecutor connected the gap in the time records and the witness' alleged perjury.

Appellee argued that he was denied due process of law when the prosecutor failed to disclose and/or concealed important relevant evidence favorable to appellee. Relying on Brady v. Maryland, 373 U.S. 83 (1963), Napue v. Illinois, 360 U.S. 264 (1959) and Ingram v. Peyton, 367 F.2d 933 (4th Cir. 1966), the district court held that appellee had indeed been deprived of his right to due process. That court recognized that this case is different factually from those just mentioned, but it held that the prosecutor's conduct deprived appellee of his right to a fair trial.

We agree with the state that appellee's right to due process was not violated by the manner in which the prosecutor disclosed the information concerning the time records. A review of the record, the district court's own conclusion that after the defense had finished its case the prosecutor did disclose the information, and,iMoore v. Illinois, 408 U.S. 786 (1972) all combine to make it clear that there was no constitutional infirmity on this point.

We also agree with the state "that the only substantial issue in this case is whether the prosecutor's comment on the defense's alibi evidence was 'so prejudicial as to constitute a denial of due process.'" [citations cmitted] [appellant's brief, pg. 15]. But we cannot agree with its conclusion that the "comment" was "temperate and warranted by the evidence." [appellant's brief, pg. 1].

The state contends that: "The thrust of the prosecutor's comment was to show the jury that the payroll records introduced by the defense to corroborate Paxos' alibi were not as accurate as the defense contended...." [appellant's brief, pg. 15] and that appellee prompted the statements when it relied on Paxos' time records in its closing arguments.

While the reliability of the records of appellee's company may have been open to comment, the prosecutor's argument exceeded permissible bounds and denied appellee his right to due process.

A prosecutor has a special obligation to see that justice is done, and it is his duty to refrain from improper methods which could produce a wrongful conviction. Berger v. United States, 295 U.S. 78 (1935); United States ex rel. Darcy v. Handy, 203 F.2d 407 (3d Cir. 1955), cert. denied, Maroney v. United States ex rel. Darcy, 346 U.S. 865 (1953); United States v. Nettl, 121 F.2d 927 (3d Cir. 1941).

In this case the prosecutor did not mention the "missing" payroll records until rebuttal argument, thus foreclosing any defense comment on them.*fn4 He then accused the defense's witness of having committed perjury because his time sheet for the day in question was incomplete when the prosecutor knew for a fact that there were other company time records that would have verified the witness' presence at work. The prosecutor did more than argue that the time records were unreliable, and he did more than argue that appellee's witness could have committed perjury. He connected the alleged unreliability with the alleged perjury and argued that the witness had committed perjury because there was a gap in the records that the defense had introduced. He did this when he knew that other company records indicated that the witness had been present at work that day and when he knew that Miss Felman had told him she could not testify that the witness had not been at work. This was intentionally misleading the jury*fn5 and especially harmful in this case where credibility was such a key issue.*fn6 This conduct was a violation of due process. See United States v. Universita, 298 F.2d 365 (2d Cir. 1962). See also, United States ex rel. Thompson v. Dye, 221 F.2d 763 (3d Cir. 1955).

Appellant also argues that the remarks of the prosecutor were proper since he had disclosed the evidence to appellee's attorney in time for him to have re-opened his case and introduced the additional company records. We agree with the district court's treatment of this issue:

"However, defense counsel was effectively foreclosed from ever introducing these matters into evidence. At the same time that the prosecutor disclosed this information to the defense, he stated that he would not call Iris Felman as a rebuttal witness to testify that George Tancini did not work on the day of the robbery. The reasonable implication of this statement was that the district attorney was satisfied with Miss Felman's explanation that Tancini was at work and that this issue would not be raised. Thus, although the payroll records were highly material to indicate that Tancini worked on May 4, counsel reasonably declined to introduce them where he believed that the question of whether Tancini worked was not at issue and would not be put into issue." United States ex rel. Paxos v. Rundle, supra at 318.

It was not due to a lack of diligence on the part of appellee's attorney that the additional records supporting the witnesses' presence at work were not introduced. It was an entirely reasonable and the only original response to what the prosecutor had told him and when the prosecutor had told it to him. The only person whose time records were testified to was Paxos;*fn7 the prosecution did not cross-examine any of appellee's alibi witnesses as to their time records;*fn8 and the prosecution did not offer any rebuttal testimony as to the records.

The order of the district court will be affirmed.

VAN DUSEN, Circuit Judge, dissenting.

I respectfully dissent from the majority opinion and its conclusion because the record indicates to me that the thrust of the prosecutor's comment was to point out that the time records were unreliable and that Tancini may have been lying. In view of this, such comment was not "so prejudicial as to constitute a denial of due process of law." United States ex rel. Washington v. Yeager, 448 F.2d 87, 91 (3d Cir. 1971). See also Conyers v. Wainwright, 309 F. Supp. 1101, 1105 (S.D. Fla. 1970); $cf. United States ex rel. Brown v. Russell, 455 F.2d 464 (3d Cir. 1972). My principal reasons for this conclusion are these:

1. Since, as stated in the majority opinion, the absence of a transcript of the closing argument makes it impossible to be sure of "exactly what the prosecutor said" in his closing argument to the jury, the following finding of the district court as to what such prosecutor said is controlling, see F. R. Civ. P. 52(a):

"Thereafter, in his closing argument to the jury, the district attorney stated that the time sheets in evidence showed that George Tancini was not at work on the day of the robbery and that the jury could infer that he committed perjury when he testified that he saw relator at work on that day." (337 F. Supp. at 316)

2. The district court's conclusion that the defense was foreclosed from introducing the "missing" records, which the majority now adopts, is without factual basis. The state trial judge made no finding that the prosecutor indicated that he would not raise the issue of whether Tancini worked on May 4 and such judge found that defense counsel could have secured and offered at the trial the payroll records for the week following May 4 "by prior exercise of reasonable diligence" (see page 12 of Memorandum Opinion of September 9, 1969, cited below at n.3). Moreover, while the trial court concluded that the prosecutor's closing argument was proper,*fn1 it can only be speculated what action the trial judge would have taken on a motion to reopen the case before the jury received the charge. Where a finding is not supported by evidence in the record, it is clearly erroneous. See Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972); 9 Wright & Miller, Federal Practice and Procedure, Civil ยง 2585 at 733-34(1971).

3. After the closing arguments when the defense objected to the prosecutor's rebuttal argument, the first articulated reaction*fn2 of the state trial judge was that the defense attorney had taken the tactical chance "that what was harmful in the records" would not be discovered by the jury in only offering part of the employer's records. The trial judge himself pointed out that when D-7 was first marked as an exhibit, he noticed that it showed George Tancini (who had testified to an argument at work at 7:45 A.M. on May 4) was not marked as being at work on Thursday, May 4, and used this language at N.T. 1900 and 1901:

"THE COURT: What you are saying is, it seems to me, that you want to introduce records for a limited purpose, but anything in that record that might hurt you is not to come to the jury's attention.

"THE COURT: You are taking the tactical chance that what is harmful in those records will not be discovered by the prosecution."

At N.T. 1889-90, the trial judge said:

"THE COURT: Well, if I understand correctly, you are saying that he chose not to use the witness that might indicate that in fact, contrary to D-7, George Tancini was working.

"THE COURT: Now, these records were within your control as much as his.

"THE COURT: So that you could have called for any records that did show that Tancini was working-"*fn3

4. The second articulated reaction nb of the state trial judge was that, since the company's records, which were offered in evidence, were not accurate, any other company records would not have any greater assurance of accuracy,*fn4 using this language at N.T. 1892-94:

"THE COURT: Whatever this other record is, another week's employment record of George Tancini, what makes that any more reliable than the one that you have moved in evidence [D-7]?

"Here you have a witness taking the stand, Schauber, who is saying, 'Here are the time sheets,' and he is representing them as properly kept -

"THE COURT: - in the ordinary course of business.

"THE COURT: And this shows that Paxos, and also all of the other witnesses - when they worked.

"THE COURT: Now in fact that very record that he represents as being accurate, kept under his control, shows that one of the alibi witnesses in fact was not there Thursday [May 4] and Friday.

"THE COURT: I see nothing to prevent the District Attorney from saying this."

Also, the trial judge stated at N.T. 1898:

"THE COURT: As a matter of fact, my notes disclose that Schauber said that time records are not kept so much to show when people arrive as for charging hours against the jobs.

"MR. REIF: That's right.

"THE COURT: Which lent great credence to me that these records are not accurate, furthermore supported by the fact that they themselves may put in their own time, each worker puts in the time he arrived."

and at N.T. 1902:

"I don't know that... any other evidence that is not in this case would be any more reliable than what is in this case."

Furthermore, the defense witness called to prove Exhibit D-7 indicated on cross-examination that the company's time sheets such as D-7 were not necessarily accurate. N.T. 1565-1571 (35a-40a).

For the foregoing reasons, I disagree with the majority opinion's statement that the prosecutor's closing argument "intentionally" misled the jury (p. 8). However, irrespective of the lack of record support for the district court final order in this case, the same contention that relator was denied due process of law, because the prosecutor's argument to the jury based on the defense's alibi evidence "exceeded permissible bounds," has been rejected by all seven judges of the Pennsylvania Superior Court and all seven judges of the Pennsylvania Supreme Court after full consideration, findings and opinion supporting such rejection by the state trial court, as set forth above. The record makes clear in my view that the state has supplied a fair and rational process for this litigation, examining the very question which is the basis for the contrary conclusion of the district court and the majority opinion that the writ should issue. Under these circumstances, the following language of Mr. Justice Pitney in Frank v. Magnum, 237 U.S. 309, 333-34 (1915), seems particularly applicable:*fn5

"... this does not mean that [the state court] decision may be ignored or disregarded. To do this... would be not merely to disregard comity, but to ignore the essential question before us, which is not the guilt or innocence of the prisoner, or the truth of any particular fact asserted by him, but whether the State, taking into view the entire course of its procedure, has deprived him of due process of law. This familiar phrase does not mean that the operations of the state government should be conducted without error or fault in any particular case...."

Therefore, the Court said:

"... we hold that such a determination of the facts as was thus made by the court of last resort of Georgia respecting the alleged interference with the trial... cannot in this collateral inquiry be treated as a nullity, but must be taken as setting forth the truth of the matter, certainly until some reasonable ground is shown for an inference that the court which rendered it either was wanting in jurisdiction, or at least erred in the exercise of its jurisdiction; and that the mere assertion by the prisoner that the facts of the matter are other than the state court upon full investigation determined them to be will not be deemed sufficient to raise an issue respecting the correctness of that determination...."

(237 U.S. at 335-36)

In commenting on this language, Professor Bator has said in "Finality in Federal Criminal Law and Federal Habeas Corpus for State Prisoners," 76 Harv. L. Rev. 441 (1963), at 487:

"... the Frank opinion does, concededly, state what I conceive to be simple common sense but which others may regard as restrictive: that the fact that an unbiased court of competent jurisdiction has previously adjudicated, through a full and fair litigation, the merits of whether a defendant's federal rights were violated is crucially relevant to the question whether his detention may on habeas corpus be considered unlawful because he was denied due process of law. I regard this as common sense because it directs the inquiry on habeas corpus to the meaningful question whether the totality of state process assures us of a reasoned probability that justice was done, rather than whether in some ultimate sense the truth was in fact found."*fn6

I would vacate the December 21, 1971, district court order and direct that the case be remanded so that the district court may pass on the other contentions in the petition for a writ of habeas corpus (see paragraphs 11 and 12 of the petition), since the district court concluded "we need not discuss the other grounds raised in the petition" (p. 319 of 337 F. Supp.).

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