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
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."
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, ...