UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 16, 1974.
UNITED STATES OF AMERICA EX REL. GEORGE PAXOS
ALFRED T. RUNDLE, THE COMMONWEALTH, APPELLANT
D.C. Civil No. 70-2781 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Gibbons and Hunter, Circuit Judges. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. James Hunter, III, Circuit Judge, with whom Aldisert, Gibbons, Circuit Judges, join dissenting
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
The respondent (Superintendent of a Pennsylvania prison) appeals from a district court order entered after an evidentiary hearing and granting relator a writ of habeas corpus. See United States ex rel. Paxos v. Rundle, 337 F. Supp. 315 (E.D. Pa. 1971).
Relator and two co-defendants were found guilty by a jury on February 23, 1968, of conspiracy to commit burglary and robbery (#357), aggravated robbery of Catherine McNally (#359), aggravated robbery of Edmund McNally (#360), and burglary with intent to commit robbery (#361). See N.T. 2085. Post-trial motions filed on behalf of all defendants were argued and dismissed. Relator received a total prison sentence of two to ten years on all four indictments. On appeal from judgment of sentence to the Pennsylvania Superior Court, relator alleged, inter alia, that he was denied due process of law when the prosecuting attorney failed to disclose and/or concealed important relevant evidence favorable to the defendant. On June 11, 1970, the Superior Court unanimously affirmed judgment of sentence without an opinion. Commonwealth v. Paxos, 217 Pa. Super. 734 268 A.2d 148 (1970). On August 21, 1970, the Supreme Court of Pennsylvania denied a petition for allocatur.
The charges arose from the robbery and the terrorization of the McNally family on the morning of May 4, 1967.*fn1 Relator was identified at the criminal trial as one of the three persons committing the crimes by Thomas McNally (age 13), who was the first person awakened by the noise of breaking doors,*fn2 and by Mr. McNally.*fn3 A police officer, who was a neighbor of the McNallys, testified that at about 8:35 A.M., when he placed a can of rubbish in front of his home, relator was standing near the McNally home talking to the co-defendant, Fleckenstein.*fn4 Mr. Brady, also a neighbor of the McNallys, testified that "about a week before" the commission of the crimes he saw Paxos sitting in a white Ford parked in front of his house between 5:00 and 6:00 P.M. for 20 minutes or one-half hour (N.T. 853-57, 872--18b-23b of Supplemental Appendix). A white Ford was observed parked near the McNallys' home by the above-mentioned police officer at 6:45 A.M., 7:55 A.M., 8:10 A.M., 8:25 A.M., and 8:35 A.M. on the morning the crimes were committed (N.T. 1165-74, 1202-08--25b-41b).*fn5 Another witness testified that a fingerprint corresponding to that of relator was found on a cup in the kitchen of the McNally home.
Relator did not take the stand. He produced an expert witness, who testified that the fingerprint was not that of relator, and eight fellow-employee alibi witnesses, seven of whom testified that relator was at his place of employment sometime between 7:30 A.M. and 8:00 A.M. on May 4. As to the facts upon which the habeas petition was based, the district court found as follows:
"Relator also introduced time sheets*fn6 which indicated that he worked on that day. The time sheets also indicated the number of hours worked by the other employees of Hershman's.*fn7 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.*fn8 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.*fn9 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.*fn10 The jury was never apprised of the payroll records showing that Tancini was paid for that day or the statement of Miss Felman explaining the omission in the time sheets. Relator's counsel raised an objection to the prosecutor's comment, but the Court ruled that the argument was not improper."
337 F. Supp. at 316.
Relator argued that he was denied due process of law when the prosecutor failed to disclose and/or concealed important relevant evidence favorable to him. Relying on Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), the district court held that relator had been deprived of his right to due process. We disagree. The manner in which the prosecutor disclosed the information concerning the payroll records did not violate due process. The disclosure issue in this case is governed by Moore v. Illinois, 408 U.S. 786, 794-798, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972), which was decided subsequent to the district court's opinion. Moore distinguishes Brady and Napue, relied on by the district court. Under Moore, the conduct involved here clearly did not warrant a new trial. See also United States v. Clark, 454 F.2d 1056 (3d Cir. 1972).
The district court also ruled that, although the prosecutor disclosed to defense counsel the evidence concerning payment to Tancini for work on May 4 in rebuttal of D-7 and favorable to the defense prior to the closing arguments to the jury,
". . . . 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."
(337 F. Supp. at 318)
In addition, the district court concluded that, had defense counsel moved to have the case reopened after closing arguments, the trial judge would have denied the motion.
After a careful review of the record, we are unable to find any evidence to support the last two sentences quoted above and the above conclusion that the defense was foreclosed from introducing the payroll records. The 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, Commonwealth v. Fleckenstein, et al., Phila. Court of Common Pleas, Trial Division--Criminal Section, July Sess. 1967, Nos. 357, 359, 360, 361. Moreover, while the trial court felt for these reasons that the prosecutor's closing argument was proper, it can only be speculated what action the trial judge would have taken on a motion to reopen the case. 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 § 2585 at 735 (1971).
There is also a suggestion in the district court opinion that, foreclosure aside, it was improper for the prosecutor to have argued to the jury that it could have inferred from the time records that Tancini committed perjury. See 337 F. Supp. at 316, 318. After a careful review of the trial and habeas corpus records, we have concluded that the thrust of this comment was to point out that the time records were unreliable and that Tancini may have been lying.*fn11 Since the defense relied on the weekly time sheets to substantiate relator's alibi (N.T. 1902), after he had been informed by the prosecutor that those sheets offered in evidence by the defense indicated Tancini had not worked on May 4, 1967, it was proper for the prosecutor to point out the defect in this defense evidence. As stated in United States v. Casteel, 476 F.2d 152, 155 (10th Cir. 1973), "counsel does have the right to reply to an argument raised by his opposing advocate." See also United States v. Panepinto, 430 F.2d 613, 616 (3d Cir. 1970); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973). Furthermore, there was nothing in his comment to suggest that the prosecutor was intentionally misleading the jury or that he was relying on false evidence. Indeed, the trial judge specifically found that the payroll record might have been no more accurate than the time sheet and, in any case, did not prove the presence of witness Tancini at work on the day in question.*fn12 Therefore, the prosecutor's 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).
The dissenting opinion contends that the prosecutor's closing argument to the jury went beyond the scope of permissible advocacy. With due respect, we do not think that the record in this case supports such a conclusion. Defense counsel was informed of the existence of the payroll records prior to any of the closing arguments, according to the explicit finding of the district court in the last sentence in the quotation of the district court's opinion quoted on page 6 above, and the following sentence, starting on the last line of the quotation on that page, making clear that the closing arguments to the jury were "thereafter" this disclosure. For this reason, defense counsel was not "foreclosed" by the timing of this argument, as he could have asked to offer more testimony as soon as the prosecutor told him of the Felman evidence prior to all closing arguments.*fn13 Furthermore, since all the time records were submitted into evidence, and not merely those of Paxos, there is no reason why the prosecutor was not free to comment on their contents in rebuttal to the defense counsel's argument that they showed that Paxos had been at work that day. As discussed above (see note 11), the thrust of that comment was to point out that the same time records which listed Paxos as at work on May 4 also indicated that Tancini was absent; thus, the jury could conclude either that Tancini was lying when he testified that he saw Paxos at work on that day or that those records were not reliable. We see nothing improper in such a comment.
Finally, we note that 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 of the findings and opinion supporting such rejection by the state trial court, as set forth above. The record makes clear in our view that the state has supplied a fair and rational process for this litigation. See United States ex rel. Booker v. Johnson, 488 F.2d 229 (3d Cir. 1973) Slip Opinion at pp. 9-10. See also Schneckloth v. Bustamonte, 412 U.S. 218, 250-275, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (concurring opinion of Powell, J.).
The district court order of December 21, 1971, will be vacated and the case 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." 337 F. Supp. at 319.
JAMES HUNTER, III, Circuit Judge, with whom Aldisert and Gibbons, Circuit Judges, join dissenting:
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, 79 L. Ed. 1314, 55 S. Ct. 629 (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, 98 L. Ed. 375, 74 S. Ct. 103 (1953); United States v. Nettl, 121 F.2d 927 (3d Cir. 1941). Because I believe that the prosecutor's conduct in this case violated due process, I must dissent.
The prosecutor's closing argument to the jury went beyond the scope of permissible advocacy, and this court should not tolerate it. He did not mention the omission on the time sheets until rebuttal argument, thus foreclosing any defense comment on them.*fn1 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's presence at work. The prosecutor did more than argue that the time records were unreliable, and he did more than argue that relator'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. This was intentionally misleading the jury*fn2 and especially harmful in this case where credibility was such a key issue.*fn3 With all deference to the majority I cannot agree with its conclusion that this conduct was not a violation of due process. See United States v. Universita, 298 F.2d 365 (2d Cir. 1962).
The majority further concludes that even if the comment by the district attorney was prejudicial, it is not reversible error. Its reasoning is that if the appellee's counsel had acted with due diligence he could have introduced the payroll records himself, and thereby prevented any possibility of prejudice. Since he failed to act with the requisite due diligence at trial, the appellee cannot now complain about the consequences of his own negligence.
In order to reach this conclusion, the majority must reject, not merely as incorrect, but as clearly erroneous, at least one of two key findings of the district court. I feel that the rejection of either under this narrow standard of review is unwarranted.
The first finding that is rejected is the district court's view that appellee's failure to introduce the additional records supporting the witness's presence at work was not due to a lack of diligence. Far from finding this to be clearly erroneous, I would agree with the district court that appellee's course of conduct was entirely reasonable and indeed was almost the only logical response to what the prosecutor had told him and when he had told it to him. To require defense counsel to introduce this testimony would be to require a defendant to anticipate and refute a rebuttal argument where he has been led to believe that the rebuttal argument would not be made.*fn4
The second finding rejected by the majority is the district court's conclusion that the trial judge would not have allowed the defense to reopen the case. The majority characterizes this finding as speculation. However, the Pennsylvania rule on whether to allow a case to be reopened is that the matter is within the trial judge's discretion. See Commonwealth v. Ghaul, 205 Pa. Super. 80, 86-87, 207 A.2d 917 (1965); Cf. Silver v. Miller, 204 Pa. Super. 16, 18, 201 A.2d 308 (1964). Since the trial judge felt that the prosecutor's comment was proper (49a-60a, N.T. 1885-1896), it is reasonable to infer that the trial judge would not have allowed the case to be reopened. As a result, it seems to me that the district court's finding on this question is not clearly erroneous either and must be accepted by this court. F.R.C.P. 52(a). If each of these findings must be accepted, the conclusion seems inescapable that the appellee claim likewise cannot be rejected on the alternative basis that he was negligent in failing to introduce evidence to neutralize the effect of the prosecutor's comment.
As a result, I would affirm the order of the district court.