(D.C. Civil Action No. 70-2781) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges
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.'
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 ...