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November 14, 1975


Green, J.

The opinion of the court was delivered by: GREEN


 Before the Court is a petition for a writ of habeas corpus brought by relator, a state prisoner. Relator argues that he was deprived of his constitutional right of due process of law by the instructions of the trial court to the jury in his criminal trial.

 In instructing the jury, the trial judge made comments, unsupported by the evidence, which were unfairly prejudicial to relator. However, relator's counsel failed to object and thus did not comply with Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure, which states that: "No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. . . ." On January 10, 1972, the jury returned a verdict of guilty of forcible rape and assault and battery. Following the denial of general motions for a new trial and arrest of judgment, relator was sentenced on May 25, 1972, to a term of imprisonment of ten to twenty years. *fn1" Relator appealed to the Superior Court of Pennsylvania on June 20, 1972 assigning as error the instruction of the trial court. The Superior Court affirmed per curiam and without opinion on April 4, 1973. Relator then filed a petition with the Supreme Court of Pennsylvania on August 27, 1973 to allow on appeal nunc pro tunc ; this petition was denied allocatur on September 9, 1974. Relator then filed his pro se petition for a writ of habeas corpus in this Court on November 22, 1974, and counsel was appointed thereafter.

 On February 20, 1975, we entered an Order directing the District Attorney of Philadelphia to file an amended answer to the petition for writ of habeas corpus specifically addressed to the questions of whether relator has exhausted the state court remedies under the applicable rules and whether there presently exists an available state court remedy for relator to pursue. On March 10, 1975, the District Attorney responded to the Order by saying ". . . relator was allowed leave to file a petition for allowance of appeal nunc pro tunc. The court then denied allocatur as though the petition had been timely filed. Therefore, since relator raised the issues he raises herein in his appeal to the Superior Court and the Supreme Court subsequently denied allocatur, he has exhausted all available state court remedies."

 We issued a Memorandum and Order on April 11, 1975 in which we concluded that the record before us was adequate for resolution of relator's constitutional claims. Nevertheless, we granted both sides leave to file a motion for reconsideration. The Commonwealth responded by letter dated April 29, 1975, with arguments which in effect expatiated upon its previous arguments -- to wit, by not taking exception to the trial court's charge at the time of trial, relator "waived" his right to allege prejudicial error as to the charge and therefore he is precluded from raising the claim in this federal habeas corpus proceeding; and the purported error was not prejudicial within the context of the total charge.

 We ordered a hearing for September 4, 1975 to afford the parties an opportunity to offer evidence and to be heard on oral argument. The only evidence offered was a stipulation stating:

". . . relator did not discuss the court's charge to the jury with his attorney during trial and therefore . . . he did not participate in counsel's decision to any portion of the charge."

 Relator has satisfied all the prerequisites for invoking the habeas corpus jurisdiction of this Court. *fn2" Therefore, the record before us is adequate for the resolution of the waiver issue and relator's constitutional contention.

 In regard to the issue of waiver, we conclude that relator has not waived his right to allege constitutional error as to the trial judge's charge. As to relator's constitutional claim, we conclude that the trial judge's charge was so unfairly prejudicial that it denied relator a fair trial and, therefore, was violative of constitutional due process.


 The Commonwealth argues, on the one hand, that relator has committed a waiver by not raising his claim at trial but, on the other hand, states that it does not raise any question as to a "by-pass of state court remedies", thereby suggesting that a distinction is to be made between waiver and deliberate by-pass. Regardless of whether labeled "by-pass" or "waiver" the applicable standard is set forth in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). There, the Supreme Court held that a "federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts . . . ." 372 U.S. at 438, 83 S. Ct. at 848. See also, Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 891 n.9, 43 L. Ed. 2d 196 (1975). Thus we may deny relief only if we find that relator deliberately by-passed the orderly procedure of the state court. *fn3"

 In support of its waiver, or deliberate by-pass, contention, the Commonwealth relies principally upon Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 and U.S. v. Harris, 498 F.2d 1164 (3rd Cir. 1974) cert. den. 419 U.S. 1069, 95 S. Ct. 655, 42 L. Ed. 2d 665 (1974). These cases, however, are factually distinguishable from relator's case on the basis that they presented a factual pattern from which one could reasonably abstract an issue of waiver. It is clear from the facts of the instant action that waiver simply is not in issue. For, in writing the majority opinion in Fay v. Noia, supra, Mr. Justice Brennan states that the classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, "furnishes the controlling standard" in federal habeas corpus. Fay v. Noia, 372 U.S. at 439, 83 S. Ct. at 849. Johnson v. Zerbst, supra, defines waiver as "an intentional relinquishment or abandonment of a known right or privilege". 304 U.S. at 464, 58 S. Ct. 1023, 82 L. Ed. 1461. In conjunction with this definition of waiver, the following remarks by Mr. Justice Brennan are of critical importance to the instant action:

At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. . . . A choice made by counsel not participated in by the petitioner does not automatically bar relief. . . . [Waiver] affecting federal rights is a federal question. (cases omitted)

 Further, Henry v. State of Mississippi, supra, 379 U.S. at 452, 85 S. Ct. at 570, one of the primary cases relied upon by the Commonwealth, states that the burden is on the Commonwealth to prove waiver:

 The only evidence before us which goes to the Commonwealth's waiver argument is the stipulation entered into by the Commonwealth and relator's counsel at the evidentiary hearing on September 4, 1975. Rather than supporting the Commonwealth's waiver argument, the stipulation undercuts it. It shows that relator did not participate in his counsel's decision to forego objection to the trial court's charge to the jury and, indeed, that relator did not exercise any choice in the matter at all. As the Commonwealth has failed to produce any evidence of a waiver, we are compelled to find that it has not met its burden of proof. Therefore, we conclude that an issue of waiver cannot reasonably be abstracted from the factual pattern placed before us.

 There is an even more compelling basis for us to conclude that the factual pattern before us does not reasonably present an issue of waiver. Even though counsel for relator did not take exception to the trial court's instructions as required by Pa. R. Cr. P. 1119(b) at all times pertinent hereto, Pennsylvania courts have applied the so-called rule of Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968), which states that a Pennsylvania appellate court would review "such basic and fundamental errors as, in view of the entire record, require . . . [the conclusion] that one accused of a crime has been deprived of a fair and impartial trial", notwithstanding the fact that such error had not been raised below. Commonwealth v. Jennings, 442 Pa. 18, 26, 274 A.2d 767, 771 (1971). See also, Commonwealth v. Miller, 448 Pa. 114, 290 A.2d 62 (1972). The Pennsylvania Supreme Court has recently abrogated the rule of Commonwealth v. Williams for both civil and criminal cases. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (criminal); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) (civil). In abrogating the rule, the court recognized that Justice Roberts in his dissenting opinion in Commonwealth v. Williams adequately described the situation as it existed under said rule despite the presence of Pa. R. Cr. P. 1119(b). Justice Roberts' description is quoted in Commonwealth v. Clair at 273 as follows:

The majority now -- contrary to the whole course of modern trial procedure -- encourages defense counsel to sit by silently without calling errors to the trial court's attention until after the guilty verdict is returned. In effect the majority's present approach places the appellate court in the role of a super-trial-defense counsel. Where counsel fails to call errors to the attention of the trial judge, the majority ignores that deficiency and assumes the function of protecting those failures by granting relief despite the silence of counsel at trial.

 The facts of the case before us show that relator's counsel did exactly what Justice Roberts said could be done under the rule of Commonwealth v. Williams4 -- to wit, he sat by silently without calling errors to the trial court's attention. It is clear, then, that there was no waiver, or deliberate by-pass, of any of relator's constitutional claims; there was merely resort to an alternative route for assertion of said claims.

 Even if the facts before us did raise an issue of waiver, we would still be compelled to rule in favor of relator on said issue. For, it is well established that where the state courts consider or "entertain" petitioner's constitutional claims on the merits at any point during post-conviction proceedings, the state is precluded from relying on the waiver, or by-pass, rule and the federal courts have no discretion to deny habeas relief to which petitioner is otherwise entitled. Lefkowitz v. Newsome, 420 U.S. at, 292, 95 S. Ct., at 891, n.9, (1975); Warden v. Hayden, 387 U.S. 294, 297 fn. 3, 87 S. Ct. 1642, 1645 fn. 3, 18 L. Ed. 2d 782, 786 fn. 3 (1967); United States ex rel. Brown v. Russell, 318 F. Supp. 76 (E.D. Pa. 1970). The fact that the Supreme Court of Pennsylvania entertained relator's appeal alleging constitutional error, and the fact that it rendered a decision thereon by denying allocatur on relator's petition "as though the petition had been timely filed", *fn5" leads us to conclude that a decision on the merits was reached, even though not accompanied by an opinion. Cf. United States ex Rel. Brown v. Russell, supra (decision by a judge without opinion in favor of the Commonwealth pursuant to the Post-Conviction Hearing Act was deemed to be on the merits). Under these circumstances, we decide that as a matter of law the Commonwealth cannot rely upon the waiver, or by-pass, rule.


 Relator attacks the trial judge's charge to the jury as being prejudicial and, hence, violative of the Due Process Clause of the Fourteenth Amendment. In support of this general allegation, relator contends, in part, that the trial judge unfairly reviewed the evidence and "seriously prejudiced . . . [him] and contributed to the conviction by ridicule and implication to the jury that the petitioner had committed other crimes and was unworthy of belief."

 We are most cognizant of the fact that this case involves the undisputed commission of a heinous crime and wrong to the victim. Moreover, it is obvious that the evidence produced at trial is sufficient to support the jury verdict. However, it is also clear that the jury, in order to return its verdict of guilty, had to resolve critical and disputed questions involving the accuracy and reliability of two issues -- identification and credibility. In short, the question of the guilt or innocence of the defendant involved the sensitive and sensible appraisal of the facts in evidence and the inferences therefrom, a task and function peculiarly that of the jury under our system of criminal jurisprudence.

  In assessing whether erroneous charges were sufficiently prejudicial to violate a defendant's due process rights, we must consider, within the context of the entire trial, the probable impact of such charges on the jury. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972). We also recognize that "errors committed during the trial of a criminal case in the state court are not subject to review in a habeas corpus proceeding in a federal court unless it is shown that the errors were so conspicuously prejudicial as to deprive the defendant of a fair trial." U.S. ex rel. Cannon v. Maroney, 373 F.2d 908, 910 (3rd Cir. 1967).

 We have carefully reviewed the entire state court trial record and conclude that the impact of the unfairly prejudicial comments by the trial judge, in instructing the jury, deprived relator of a fair trial as guaranteed by the Fourteenth Amendment right to due process of law. Indeed, the trial record permits no other finding.

 The trial record clearly shows that the trial court weighted the charge heavily in favor of the Commonwealth and against the defendant. This is indicated by the fact that: (1) the instructions of the trial judge contain statements regarding other criminal conduct on the part of relator, notwithstanding the fact that there is not one iota of evidence in the entire record to support such statements; *fn6" (2) the trial judge made comments which undermined relator's attempt to impeach the prosecutrix, the only witness who clearly identified relator; (3) the court misstated the ...

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