The opinion of the court was delivered by: MCCUNE
The issue presented by this petition for writ of habeas corpus is whether as a matter of federal constitutional law a defendant in a state criminal proceeding was denied due process of law by the refusal of a state trial judge to have the closing argument of the prosecutor stenographically recorded upon request of defense counsel. As phrased in the petition before us: Does the Fourteenth Amendment to the Constitution require that closing arguments of counsel be stenographically or mechanically recorded, upon request, so that a criminal defendant will have a record available to attack prejudicial comments of the state prosecutor when he alleges that these comments and arguments deprived him of a fair trial as defined by the Fifth and Fourteenth Amendments to the Constitution. Petition P9.
On March 15, 1972, petitioner was convicted by a jury in Common Pleas Court of Allegheny County for failure to support a child born out of wedlock,
a misdemeanor under Pennsylvania law, 18 P.S. § 4732. Motions for a new trial and in arrest of judgment were subsequently denied whereupon petitioner appealed to the Superior Court of Pennsylvania which affirmed the conviction by per curiam order, 224 Pa.Super. 748, 301 A.2d 903 (1973). The Pennsylvania Supreme Court denied allocatur and the Supreme Court of the United States denied certiorari on January 14, 1974, 414 U.S. 1145, 94 S. Ct. 898, 39 L. Ed. 2d 100.
On January, 29, 1974, petitioner filed a petition for writ of habeas corpus alleging that he was in custody
of respondent pursuant to the judgment of a state court in violation of his rights under the federal constitution. Petitioner alleged, inter alia, that his constitutional rights were violated by the failure of the trial court to record the closing argument of the state prosecutor. He contends that such failure denied him due process of law in that it precluded a meaningful appeal, and that this violation was of constitutional magnitude.
Upon initial consideration of the petition, it was our opinion that petitioner had not properly raised the issues
presented here in the state courts. Accordingly, we dismissed the petition for failure to exhaust available state remedies as required by 28 U.S.C. § 2254(b).
See Memorandum and Order of April 9, 1974.
Petitioner then filed a motion for reconsideration alleging that the contentions raised in the petition had been presented to the state courts on appeal. That motion was denied by Memorandum and Order of May 3, 1974. Petitioner next filed a motion requesting that the appeals period be stayed so that petitioner could present material establishing that the issues raised in his petition had been presented in the state Court. We granted that motion and heard oral argument on May 27, 1974. However, we remained unconvinced that the state courts had been given a fair opportunity to consider the arguments presented by the petition. Therefore, in the interests of comity we declined to exercise jurisdiction. See Memorandum and Order of May 29, 1974.
Petitioner then appealed dismissal of the petition to the Court of Appeals for the Third Circuit which by per curiam order of April 23, 1975, remanded the case for consideration of petitioner's first contention.
The Court of Appeals, relying on Commonwealth v. White, 447 Pa. 331, 336, 290 A.2d 246 (1972) held that Pennsylvania's liberal position on appellate review require that we determine the first issue raised by petitioner:
"We would hesitate to say that the constitutional issues had been fairly presented to the state appellate courts by the vague and confusing references in petitioner's brief. However, clarification was added in the Commonwealth's brief in the Superior Court . . .
"Read together, the appellant and appellee briefs did present to the Superior Court of Pennsylvania, albeit sketchily, the issue of whether there was a constitutional requirement of recording the prosecution's closing arguments on defendant's request."
We now consider that issue.
"The Due Process Clause of the Fourteenth Amendment has long been recognized as assuring 'fundamental fairness' in state criminal proceedings. See, e. g., Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 289-290, 86 L. Ed. 166 (1941); Moore v. Dempsey, 261 U.S. 86, 90-91, 43 S. Ct. 265, 266, 67 L. Ed. 543 (1923). Throughout the history of the clause we have generally considered the question of fairness on a case-by-case basis, reflecting the fact that the elements of fairness vary with the circumstances of ...