contention that he required the assistance of counsel because of his difficulties with the English language, noting that an interpreter had been available to petitioner and counsel throughout the trial and throughout the hearing on the first petition. The judge rejected petitioner's request to amend the second petition, on the grounds that there was no factual averment explaining failure to raise an issue at the earlier hearing. He also concluded that petitioner's unfamiliarity with English did not preclude waiver.
The Philadelphia Defender Association was appointed to represent petitioner on appeal. In that appeal, petitioner alleged that Judge Spaeth had improperly dismissed the second and third postconviction petitions, and that he had erred in ruling that petitioner waived his right to assert the substantive claim raised for the first time in the second post-conviction petition because of his failure to raise that issue in his first post-conviction petition and in his appeal nunc pro tunc. The Commonwealth argued that the post-conviction petitions had been properly dismissed because the substantive claim raised in the second petition was patently frivolous. On August 12, 1971, the Superior Court affirmed the order of Judge Spaeth, per curiam, and without opinion. Commonwealth v. Navarro, 219 Pa.Super. 731, 280 A.2d 447 (1971). On December 15, 1971, the Supreme Court of Pennsylvania denied a petition for allowance of appeal, as of No. 263 Allocatur Docket.
Petitioner next returned to the federal courts by filing the present habeas corpus petition. In that petition, he alleged that: (1) the state courts improperly dismissed his second and third post-conviction petitions without appointing counsel; (2) the state courts had erred in ruling, without a hearing, that he had waived his right to assert the constitutional issue raised for the first time in the second petition; and (3) he was denied his constitutional right to confront and cross-examine witnesses when the Commonwealth failed to present two alleged eyewitnesses. The Commonwealth answered, conceding that federal waiver standards should apply, but asserting that this Court need not reach the question of whether Judge Spaeth correctly decided the waiver issue because petitioner's substantive claim was patently frivolous.
In accordance with the local rules of this Court, the matter was referred to United States Magistrate Edwin E. Naythons, who, on June 8, 1972, filed a report. Magistrate Naythons concluded that the record before the state courts did not provide sufficient evidence from which a finding could be made as to whether, under federal waiver standards, petitioner's failure to raise the confrontation issue at an earlier stage constituted a waiver of his right to litigate that issue. He recommended that an evidentiary hearing be had with respect to this issue. Magistrate Naythons also raised in his report an issue not raised by the petitioner in the present petition, that of ineffective assistance of counsel. Having reviewed the trial record and the transcript of the PCHA hearing before Judge Greenberg, Magistrate Naythons was disturbed about a number of aspects of Mr. Quinlan's representation, with particular emphasis on his minimal contact with petitioner prior to trial and the inadequacy of his preparation and cross examination. Accordingly, he recommended that the evidentiary hearing address this issue as well.
Upon receipt of Magistrate Naythons' report we made an independent review of the transcript of the trial and of the PCHA hearing. For reasons which will appear, infra, consonant with the findings of Judges Greenberg and Kraft, we did not concur with Magistrate Naythons' view that the record reflected performance by Mr. Quinlan below the "normal competency" standard of Moore v. United States, 432 F.2d 730 (3d Cir. 1970).
However, we felt that the record revealed a potentially serious problem stemming from the fact that petitioner had no means of communicating with his attorney, Mr. Quinlan, when the lone court interpreter present at petitioner's trial translated the testimony of Ocasio and Pacheco from Spanish to English for the benefit of the trial judge. Since the testimony of Ocasio and Pacheco was critical to the Commonwealth's case, and since there was at least a question as to the adequacy of Mr. Quinlan's cross-examination, we felt that an evidentiary hearing was in order to determine whether or not the possible breakdown in communication between petitioner and his counsel at that juncture affected petitioner's constitutional rights to effective counsel, due process and/or confrontation.
Accordingly, although noting that we were not in substantive agreement with the position taken by Magistrate Naythons in his report, we concurred in his recommendation that we hold an evidentiary hearing.
The hearing was held on March 5, 1973 and a Spanish-speaking interpreter was present.
Petitioner was represented by Stanford Shmukler, Esq., one of Philadelphia's ablest criminal defense lawyers. During the course of the hearing, we granted petitioner leave to amend his petition to raise as a ground for relief the claim that he had been denied the effective assistance of counsel because of inadequate preparation and performance by Mr. Quinlan. Our concern prior to the hearing was that while the Spanish-speaking witnesses were testifying, petitioner would have no means of communicating with his English-speaking lawyer, Mr. Quinlan. We wondered whether petitioner could comment to his lawyer about the witnesses' testimony, point out inconsistencies with the facts if they occurred and make suggestions as to questions to be asked. In the present case, petitioner was able to follow the proceedings when the Spanish-speaking witnesses, Ocasio and Pacheco, were testifying. While the English-speaking witnesses were testifying, the interpreter sat with him to explain what they were saying. The evidence adduced at the hearing established that petitioner had no complaint about inability to confer with his lawyer during trial, for when petitioner required it, Judge Spaeth permitted interruption of the proceedings so that petitioner could confer through the interpreter. For the most part, petitioner did not require it. Accordingly, no claim of the type we are discussing was pressed and we deem it abandoned. The testimony at the hearing before this Court, therefore, was devoted exclusively to the general ineffective assistance issue, as well as to the questions of whether petitioner exhausted his state remedies and whether he had deliberately by-passed the ineffective assistance issue in the state courts.
III. Exhaustion of State Remedies
The Commonwealth vigorously asserts that the petition must be dismissed because petitioner has failed to exhaust available state remedies, including nunc pro tunc appeals which are generally allowed by the Pennsylvania state courts. In pressing its exhaustion claim, the Commonwealth has noted: (1) that in the very first post-trial proceeding, the PCHA hearing before Judge Greenberg, the petitioner asserted and developed an extensive record on what we shall refer to as general ineffective assistance of counsel, i. e., lack of preparation and inadequate performance in general; (2) that at post-trial motions before Judge Spaeth, petitioner raised the question of the ineffectiveness of trial counsel for failing to adequately present the evidence to Judge Spaeth and for failing to request a summation; but (3) that on appeal from the denial of post-trial motions, the only ineffective assistance claim raised by petitioner related to counsel's failure to request summation. In the wake of this procedural history, the Commonwealth argues that petitioner's claim of general ineffective assistance of counsel has never been presented to the Pennsylvania appellate courts, and that he has an available state remedy open to him. The Commonwealth contends that petitioner could make a nunc pro tunc appeal from the denial of post-conviction relief or appeal from Judge Spaeth's order denying his post-trial motions. We disagree and find that the Pennsylvania courts would consider that petitioner had finally litigated the ineffective assistance claim.
In the case of Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734 (1968), cert. denied, 393 U.S. 1102, 89 S. Ct. 901, 21 L. Ed. 2d 794 (1969) (Wilson I), the appellant was convicted of first degree murder and sentenced to life imprisonment. On his direct appeal to the Pennsylvania Supreme Court, he raised eleven contentions, including ineffective assistance, which was couched principally in terms of trial counsel's failure to object to a large number of questions ( Wilson I, supra). In a subsequent PCHA petition, Wilson raised a fundamentally different ineffective assistance claim, contending: (1) that his counsel's representation of a codefendant in a separate trial for the same offense constituted a conflict of interest which deprived him of constitutionally guaranteed effective assistance of counsel; and (2) that during his trial his attorney did not conduct a voir dire examination of certain minor witnesses who testified for the Commonwealth to determine if they were competent to testify.
The PCHA court denied relief and Wilson appealed.
In Commonwealth v. Wilson, Pa., 452 Pa. 376, 305 A.2d 9 (1973) (Wilson II), the Pennsylvania Supreme Court held that there was no need to examine the merits of Wilson's contention, since the issue of trial counsel's competency had already been "finally litigated" within the terms of the PCHA. Mr. Chief Justice Jones, speaking for a unanimous court, wrote:
In his initial direct appeal the appellant argued that he had been denied effective assistance of counsel at trial. We reviewed the record and ruled that the appellant received "competent assistance of counsel rendered by an experienced trial lawyer." In this petition the appellant has advanced a new theory in support of his previously litigated contention that he did not receive adequate assistance of counsel. However, as we stated in a similar situation in Commonwealth v. Slavik, 449 Pa. 424, 430, 297 A.2d 920, 923 (1972): "merely because appellee advances a new or different theory as a basis for his previously adjudicated claim does not alter the fact that this precise issue was decided adversely to petitioner in his previous . . . direct appeal." The appellant raised the issue of the competence of his trial counsel on his direct appeal and that issue was decided adversely to the appellant. The issue is now finally litigated under the terms of the statute and cannot be reopened merely by asserting another theory upon which incompetence could be founded.
Wilson II, supra at 11.
In the direct appeal in the case at bar, petitioner raised the question of whether counsel was ineffective for failing to request summation. The trial transcript consisted of only 34 pages, and both the Supreme and Superior Courts had that record before them in deciding the case. Those courts doubtless also had the transcript of the PCHA hearing before Judge Greenberg which had been held prior to (and gave rise to) the direct appeal; the PCHA record totals 32 pages. We are confident that in the circumstances of this case the Pennsylvania appellate courts, following the precedent of Wilson II, would hold that petitioner, having raised the ineffective assistance claim in one aspect could not now raise a new or different theory of ineffective assistance.
Thus, petitioner has no state remedies remaining.
IV. Deliberate By-Pass
In an alternative argument, the Commonwealth has asserted that the history of petitioner's prior appeals and attempts at collateral relief demonstrate a deliberate by-pass of state procedures available for the litigation of the ineffective assistance question. Had there been an available state remedy, we would have been bound, under the teaching of United States ex rel. Johnson v. Cavell, 468 F.2d 304 (3d Cir. 1972) to withhold a hearing on the waiver issue asserted by the Commonwealth and to remand the matter to the state court where such a hearing could be held.
There being no available state remedy, it was necessary for us to take evidence to determine the validity of the Commonwealth's contention that petitioner had deliberately by-passed his state remedies, thus forfeiting his federal claim.
Under the "deliberate by-pass" doctrine, as it is known, if the petitioner deliberately sought to subvert or evade orderly adjudication of his federal defenses in the state courts, then the federal court has a "limited discretion" to find that petitioner deliberately by-passed his state remedies. See generally Sokol, Federal Habeas Corpus, 2d Ed. 1969; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). This means that the petitioner is forever barred from raising his contention in a federal court by way of habeas corpus. A deliberate by-pass is thus judicially-created doctrine in the nature of a forfeiture. See Sokol, Federal Habeas Corpus, 2d Ed. p. 167.
Since the forfeiture of the opportunity to assert a federal constitutional right is somewhat harsh, the criteria for establishing a deliberate by-pass are strict. Mr. Justice Brennan, speaking for the court in Fay observed:
The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 -- " an intentional relinquishment or abandonment of a known right or privilege" -- furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits -- though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. Cf. Price v. Johnston, 334 U.S. 266, 291, 68 S. Ct. 1049, 1063, 92 L. Ed. 1356. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. Cf. Carnley v. Cochran, 369 U.S. 506, 513-517, 82 S. Ct. 884, 888-891, 8 L. Ed. 2d 70; Moore v. Michigan, 355 U.S. 155, 162-165, 78 S. Ct. 191, 195-197, 2 L. Ed. 2d 167. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.