The opinion of the court was delivered by: BECKER
This is a proceeding under 28 U.S.C. § 2255 which stems from the conviction of petitioner Joseph Taylor (Taylor) on seven counts of an indictment charging the sale of stolen motor vehicles transported in interstate commerce in violation of 18 U.S.C. § 2313. The conviction, on June 16, 1970, followed an eight-day jury trial and resulted in Taylor's being sentenced to nine years in prison and $28,000 in fines by the late Judge Ralph C. Body. The conviction was affirmed by the Court of Appeals, 469 F.2d 284 (3d Cir. 1972).
Taylor's § 2255 petition alleges that his conviction violated his constitutional rights to an impartial jury and to the effective assistance of counsel, and he moves to vacate the judgment of conviction. His collateral attack upon his conviction is basically three pronged. First, Taylor asserts that the conviction was tainted by the prejudice of a juror with whom he had been acquainted in years gone by but whom he failed to recognize while the jury was being chosen. About six to eight months after the conviction the juror, John English (English), is said to have told his brother that (as a member of the jury) he "screwed" Taylor.
Second, Taylor maintains that he was deprived of the effective assistance of counsel in view of the failure of his attorney, David N. Savitt, to persist in voir dire in interrogating English when he stated, in response to a voir dire question posed generally to all jurors, that he "believed he recognized Taylor." Finally, Taylor claims that his rights to an impartial jury and a fair trial were infringed because of the absence of the trial judge from the bench during the allegedly offending voir dire.
A. Prejudice of the Juror
The relationship between Taylor and the juror English emerged from the following facts. Following the War, in 1946, English joined his father's construction business which was, and is today, located at 1606 N. Carlisle Street in Philadelphia, Pennsylvania. In late 1953 or 1954, Taylor moved to the same block of Carlisle Street and began operating an automobile body and fender repair shop at 1620 N. Carlisle Street. Taylor remained at that location for approximately five years before moving elsewhere. During the period of time that Taylor's business existed on Carlisle Street and up until the present time, English's business was often inconvenienced by the blockage of Carlisle Street with wrecked automobiles awaiting repair in either Taylor's shop or one of several other repair shops on that block. The task often fell upon English to search out the garage which had left the cars in the street and persuade its operator to remove them. English did not usually obtain much cooperation in his efforts and in many instances it became necessary for him to summon a truck from his own place of business and have it push the cars out of the way. English admitted to having a "short fuse" and we find that in situations where he did not receive cooperation from petitioner or other repairmen he would often lose his temper.
We also find, however, that on these occasions English regained his temper and forgot the incident as soon as the problem was rectified, usually within five or ten minutes. Accordingly we credit English's testimony and find as a fact that, neither at the time of his North Carlisle Street encounters with Taylor, nor at the time of trial over a decade later did English possess any bias or grudge against Taylor.
We further find, on the basis of English's uncontradicted testimony, that at no time did English speak of his prior acquaintance with Taylor to any other member of the jury.
The remaining allegation of the partiality of English stems from an alleged conversation about six months after trial between Taylor (who remained free on bail pending his direct appeal) and Frank English, the brother of the jury foreman, John English. The conversation was with regard to an unrelated business matter.
During the course of that conversation, Frank English allegedly told petitioner that his brother had told him that he had "screwed" Taylor. Although it was originally unclear whether this statement was alleged to refer to Frank English's opinion of what his brother had done, or Frank English's recitation of what his brother had told him he had done, further testimony made clear that Taylor was alleging the latter.
However, both John and Frank English emphatically denied making such a statement.
Though John English did not impress us as the most temperate of persons, neither did he impress us as devious or dishonest and we were strongly impressed with the demeanor of his brother, Frank. We are faced with petitioner's allegation of an hearsay statement, denied both by the alleged original declarant and by the one who supposedly repeated it. We credit the testimony of both John and Frank English that the alleged offending statement was not made by English to Frank English nor by Frank English to Taylor. While we do not doubt that Frank English and Taylor did in fact have a conversation in which it was mentioned that English was on Taylor's jury, we believe that Taylor's version of the conversation is essentially a function of his characterization of the effect of the jury verdict (i.e., it "screwed" him) in which John English played a one-twelfth role. We thus find no reason to alter our earlier finding that English harbored no bias toward petitioner at the time of trial.
B. Ineffective Assistance Of Counsel
Taylor was represented at trial by David N. Savitt, Esq., a member of the Bar for fourteen years at the time of trial.
Judge Savitt testified at the hearing that at the time of trial and for approximately the ten years preceding trial, his practice consisted of approximately 80% criminal defense work. During this time he had handled between eight and ten criminal matters as far as the Pennsylvania Supreme Court and had tried numerous cases to juries in both the federal and state courts. Included in the federal trials were at least two bank-robbery cases and in the state proceedings approximately twenty homicide cases. There can be no doubt that Judge Savitt was an able and qualified attorney, fully capable of representing petitioner and we so find.
The facts forming the claim of ineffective assistance of counsel relate solely to the selection of the jury at Taylor's trial. We are confronted with several different versions of what transpired during voir dire and it is our task to determine what actually happened.
English's testimony is essentially corroborated by the transcript of the voir dire:
MR. McBRIDE (Assistant United States Attorney):
Preliminarily I would like to ask if any of you are familiar with Mr. Taylor. Do you know him? Do you know anything about the facts of this case? Have you read anything about it in the newspapers? It took place allegedly back at the end of 1967 and 1968. Have any of you any knowledge regarding the facts of this case.
Identify yourself, please.
MR. ENGLISH: No. 13. What is Mr. Taylor's address?
TAYLOR: 1210 West College Avenue.
MR. SAVITT: 1210 West College Avenue, Philadelphia.
MR. ENGLISH: I believe I recognize the gentleman.
MR. McBRIDE: All right, you are Mr. English?
MR. McBRIDE: Thank you, sir. Anyone else?
The transcript indicates no further questioning of Mr. English by either the Assistant United States Attorney or defense counsel at any time during voir dire. Yet another version of what occurred was presented by Taylor in his testimony at the hearing:
BY THE COURT: Now did [Mr. McBride] ask the jurors whether any of them knew you or recognized you?
Q. And did any juror respond to that question?
A. I thought English did stand up, Your Honor, and said that he thought he knew me.
Q. And did anybody ask him any further questions?
A. The prosecutor, I think, asked me to stand up. And when I stood up, English said I wasn't the guy. He asked me where I live and he said I wasn't the guy. I told him where I live and he said I wasn't the guy.
Q. Where did you say you lived?
A. I live on Grange Street.
Q. That is where you lived then?
Q. Well that is up in Olney or West Oak ...