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UNITED STATES EX REL. SENK v. BRIERLEY

May 24, 1974

UNITED STATES of America ex rel. Frank Earl SENK
v.
J. R. BRIERLEY, Superintendent


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

NEALON, District Judge.

 Petitioner Frank Earl Senk was convicted by a jury in Columbia County, Pennsylvania, of murder in the first degree on April 5, 1962. Since that time, petitioner has availed himself of both the appellate and collateral remedies afforded him in the state and federal judicial systems *fn1" in order to seek a reversal of his conviction on the grounds, inter alia, that his confession should not have been introduced into evidence since it was tainted by an illegal arrest, and/or, since it was involuntary.

 A full evidentiary hearing was held before this Court on July 9 and 10, 1973, during which the burden was placed on respondent to prove by a preponderance of the evidence the validity of petitioner's arrest. *fn2" With respect to the voluntariness of his confession, petitioner elected to stand upon the evidence adduced at the murder trial. *fn3"

 The facts, as adduced at the hearing before this Court and as I have found them to exist, are as follows:

 Thirteen-year-old Jane Mary Benfield of 342 W. Park Street, Centralia, Columbia County, Pennsylvania, left her home about 9:30 A.M. on Tuesday, July 11, 1961, to deliver a jar of jelly to a neighbor some 2 1/2 blocks away. Several minutes later she entered a Pontiac station wagon a short distance from her home, after being seen attempting to give directions to the driver. The automobile then proceeded north toward the nearby town of Aristes. About 7:00 P.M. on Wednesday, July 12, 1961, searchers discovered her denuded and sexually abused body in an abandoned, wooded mining area located approximately one-quarter of a mile east of the state highway leading to Aristes from Centralia. Her death, which was fixed at about 11:00 A.M. on July 11, 1961, was attributed to a fractured skull and/or strangulation.

 After conducting a six-month search for the sex murderer, the Pennsylvania State Police (PSP) took Frank Earl Senk into custody at 9:15 P.M. on January 18, 1962. Shortly after 2:00 A.M. on January 21, 1962, Senk confessed that he killed Jane Benfield when she resisted his indecent advances. His statements relating the details of the crime were reduced to a writing which he signed.

 During the course of their investigation, the PSP were aware of, or discovered, the following relevant information:

 THE TOWN

 At the time of the murder, Centralia, as a result of recent mine closings, was a rather depressed area, having a population of about 1,000 persons, most of whom were either elderly or retired. Because of the scarcity of employment opportunities, young persons had to leave the area in search of work. The town enjoyed no tourist trade and visitors consisted mainly of relatives returning for the holidays. One-third of the resident families did not own or drive cars and the social life revolved around three churches. Townsmen usually dressed in a simple shirt and pants or overalls, a suit and tie being out of the ordinary. Two main roads passed through Centralia, viz; Route 42, running from south to north, and Route 61, a four-lane highway running north from Ashland, entering Centralia on its south edge and exiting at its west end.

 THE CAR AND THE DRIVER

 During an interview conducted on July 12, 1961, the day the body was found, John May, Sr., 74, of 210 West Park Street, Centralia, told PSP that he saw Jane Benfield enter a blue and white station wagon sometime around 9:40 A.M. on Monday, July 10, 1961, after she apparently gave directions to the driver. *fn4" The driver, May said, had a full round face.

 During a July 13, 1961, interview with the PSP, Joseph Kowitskie of 310 Troutwine Street, Centralia, reported that he saw Jane Benfield riding in a blue Ford toward Aristes sometime between 9:30 and 10:00 A.M. on July 11, 1961. The driver, according to Kowitskie, was proceeding very slowly and it appeared that the car was going to stop at the post office. At that interview, Kowitskie said the driver was a white male, about 20 years old, with dark hair, woolly in the back, and wearing a dark blue suit. Later, in speaking with Trooper Lawrence O'Donnell on July 17, 1961, Kowitskie amplified his description, adding that the driver had short, dark brown hair, not a crew cut, was about 5'77", weighed 145 pounds, with smooth, tanned skin, good features, a clean, neat appearance, and was "Italian looking". He also told Trooper O'Donnell at that time that he was not sure of the make of the car, but felt that it was a medium blue station wagon.

 Interviewed on July 13, 1961, Eleanor Stasulevich of 407 West Park Street, Centralia, described the driver of a blue car which she had seen pass by Jane Benfield's home several times every day around 10:00 A.M. for about a week and a half prior to the murder, as follows: a young man, about 19, weighing 145 pounds, with smooth, olive or light brown skin, dark hair, good looking, neat appearing, Italian cooking. Alex Stasulevich, her husband, gave essentially the same description of the driver of a blue car which had almost struck his truck on the day of the murder.

 From the descriptions given by Joseph Kowitski, Eleanor and Alex Stasulevich, Trooper Lawrence O'Donnell was able to sketch a composite (Composite R 9). (Hereinafter the designation "R" shall refer to Respondent's Federal Hearing Exhibits.)

 A few days after the discovery of Jane Benfield's body, it came to the attention of the PSP that a similar attempt was made to pick up two young girls on 11th Street in Ashland, a borough about two and one-half to three miles south of Centralia, about 9:10 or 9:15 a.m. on July 11, 1961. Eva Ann Bagdonas, 13, and Linda Wertz, 13, the would-be victims, reported that the driver first asked for directions to Millersville and then to Ashland, and when they replied that they did not know, he offered them a ride. They described him as being in his late twenties or early thirties, with dark hair, blue eyes, dark complexion, medium build, and wearing a dark suit. *fn5" At a later interview with the PSP, held on August 4, 1961, the two girls established that the car which he drove was a 1959 Pontiac Safari station wagon, with a dark blue bottom and a light blue top, decorated with a rocket-shaped chrome strip on the side and the name Pontiac on the grill. *fn6"

 THE LARCENY LINK

 Senk escaped the active scrutiny *fn8" of the PSP until December, 1961, at which time an investigation into an unrelated larceny first cast suspicion in his direction. At that time, Trooper Samuel Yupco of the Milton Substation, was assigned to investigate the theft of a handbag from the home of Mrs. Altemus of Lewisburg, R.D. 1, Union County. *fn9" Yupco learned that the area was being canvassed by a group of magazine salesmen operating out of the Mifflinburg Hotel. Mrs. Solomon, a telephone solicitor for the Civic Reading Club of Harrisburg, told Yupco that Senk had been assigned to cover the Altemus home, but that someone had suspiciously erased his name from her log sheet. Senk was subsequently arrested on December 21, 1961, charged with larceny by the Mifflinburg Police and turned over to Trooper Donald Lindner of the Milton Substation. At that time Mifflinburg Police Chief Hall Solomon revealed to Trooper Yupco that he suspected Senk may have been connected with two other incidents involving young Irene Bilger who was followed and chased by an unidentified man in a car on December 5 and 15, 1961.

 After his arrest on the larceny charge, *fn10" Senk was fingerprinted and it was revealed through a Bureau of Criminal Identification Report that he had been involved or implicated in a number of sex-oriented crimes, *fn11" including the sex slaying of a young girl in Beaver County and statutory rape in Florida.

 Sometime between December 21, 1961, and January 1, 1962, Yupco, who had not seen Senk but wondered about a possible connection with the Benfield murder, showed Composite R 11 to Trooper Lindner who positively matched the sketch with Senk. *fn12" At that point, Yupco decided to report the results of his investigation to Lt. Leon Salada, then the officer in charge of the Jane Benfield case.

 Upon being so informed, Lt. Salada went to Mifflinburg on January 15, 1962, and interviewed Irene Bilger, 14, who told him that her would-be assailant was between 20 and 22 years of age, had a thin face, with dark curly hair hanging over his forehead, and that he had been wearing a suit. Although Salada could not recall if the composites were shown to Irene Bilger at that time, he did learn that Senk had recently purchased a Dodge convertible and that he was accustomed to trading in cars quite often. *fn13" From his investigation, Lt. Salada concluded that Senk required further checking out inasmuch as the modus operandi of the Irene Bilger incident was similar to the Jane Benfield case.

 SENK'S PRESENCE IN CENTRALIA

 On January 17, 1962, Lt. Salada returned to the Centralia area and discovered that Senk, his wife Mary, and Stella Reitz, a telephone solicitor for the Civic Reading Club, had previously rented a storeroom at 811 Centre Street, Ashland, on July 5, 1961, from Elizabeth Schragen, paying her a monthly rent of $20 in advance. On that same date, Paul Staudenmeier rented an apartment at 102 Centre Street, Ashland, to three people *fn14" who had been referred to him by Elizabeth Schragen. On July 12, 1961, Mrs. Schragen overheard Senk tell his wife, in an excited tone, "Come on, we're going." She said the group departed in a hurry and that Senk told her sister, Mary Ann Corba, to keep the unused balance of the monthly rent. On July 13, 1961, the day after Jane Benfield's body was discovered, Staudenmeier saw the trio leaving the apartment and they explained to him that their Harrisburg office was dissatisfied with sales and that they were ordered to leave the area but would return next year.

 THE LAST FEW DAYS

 On January 15, 1962, Lt. William Stanton assumed charge of the case and on that same date received information from a Corporal Walsh that while checking files in the central office, he had discovered an August 2, 1961, report *fn15" concerning Senk's arrest in Christiana Borough, Lancaster County, for assault with intent to ravish two minor children. As a result, Lt. Stanton took the following actions:

 (1) Checked Senk's criminal record in the Bureau of Criminal Identification files.

 (3) Sent Detective Arthur Cronin to the Civic Reading Club headquarters in Harrisburg on January 16, 1962, to confirm that Senk was in the Centralia area on July 11, 1961. *fn17"

 (4) Ordered Detective Roy Titler to reinvestigate the murder of young Rebecca Ann Triska in Beaver County in 1958. Titler reported that Senk had been arrested on suspicion of murder but that the case against him had been dropped for lack of a corpus delicti. Titler reported that, if the body had been found, there would have been sufficient evidence to substantiate a charge of murder.

 (5) Asked Detective Sgt. Ernst Strosahl and Trooper Samuel Yupco to reopen the case of assault on Irene Bilger which occurred in Mifflinburg on December 5 and 15, 1961. On January 18, 1962, after Det. Strosahl reported to Lt. Stanton that Irene Bilger had identified Senk from both the composite and a photograph, he was instructed to file an information charging Senk with indecent assault. Det. Strosahl then obtained a warrant from Union County Justice of the Peace Dale Richart and it was, in turn, delivered to Det. Rufus Williams by Lt. Stanton. *fn18"

 (6) Told Detective Kenneth Bundy to reinvestigate an indecent assault committed against Mrs. Ruth Flanders who had been accosted by a magazine salesman in her home in Bradford, McKean County, on April 30, 1961. *fn19" On January 18, 1962, Bundy reported to Lt. Stanton that Senk had been arrested for assault and battery on Mrs. Flanders and that, even though the charges against him were dropped, he was assessed the costs of prosecution and ordered out of the county. *fn20" On that same date, after Mrs. Flanders indicated her present desire to prosecute Senk, Bundy filed an information charging Senk with assault and battery with intent to ravish. Early that same afternoon, after obtaining a warrant, he left for Erie to meet Det. Williams and Det. Cronin in order to arrest Senk.

 THE WARRANTS

 At the murder trial in Columbia County Court, Lt. Stanton testified as follows:

 
"Q. I understand you were the one who made the decision to have Frank picked up, is that correct?
 
Q. When was the decision made?
 
A. I was attempting to have Frank Senk picked up beginning January 15th.
 
Q. 1962?
 
A. That is correct."

 Trial Notes at 650.

 However, as will appear below, no attempt was made to pick up Senk until January 18, 1962. With respect to that, Stanton testified at the federal hearing as follows:

 
"Q. Twelve years ago at the time of trial, when asked when you gave the order to arrest Mr. Senk, you stated that it was on January 15, 1962.
 
A. It couldn't have been on the 15th because I didn't give any order to have Frank Senk arrested until I had the warrants issued.
 
Q. Couldn't it have been at that time that you were confused about the question or that you were confused about the dates, and that accounted for the reason you said January 15th?
 
A. That could have been.
 
Q. Or could it have been that January 15th was the date that you became in charge of the investigation; in fact, the date that Mr. Senk became a suspect in your mind?
 
A. That's correct. That would be on the 15th."

 Federal Hearing Notes, at 200-201.

 On cross examination, the following responses were elicited from Stanton on this point:

 
"Q. And Senk was arrested at approximately 9:00 o'clock Wednesday (sic ...

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