95 S. Ct. 886, 43 L. Ed. 2d 196 (1975). In that case, at the time petitioner entered a guilty plea, New York law provided for appellate review of alleged coerced confessions and of the admissibility of evidence allegedly seized improperly; notwithstanding the general New York rule that a guilty plea, intelligently and voluntarily made, bars subsequent assertion of constitutional challenges to the pretrial proceeding. The Court held that because the state permitted appeal of petitioner's constitutional claims, petitioner's ". . . plea [of guilty] carried with it the guarantee that judicial review of his constitutional claims would continue to be available to him." Id., at 890. Likewise, because Pennsylvania permitted appeal of alleged constitutional, or fundamental, error not raised during trial, relator's failure to raise an objection to the trial court's charge carried with it the guarantee that judicial review of his constitutional claims would continue to be available to him. As the court in Lefkowitz v. Newsome further remarked: "To deny federal habeas corpus relief to those in Newsome's position would make New York's law a trap for the unwary." Id., at 891. Therefore, we find that on the basis of the facts before us, relator did not waive, or by-pass, his constitutional 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",
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.
III. DUE PROCESS ISSUE
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;
(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 testimony of a Commonwealth witness, Mr. Carroll. The balance of this memorandum is devoted to a more detailed review and analysis of the trial court's instructions.
A. Misstatements Regarding Prior Criminal Conduct
We note that the major thrust of relator's charge of denial of due process relates to the court's statement to the jury that relator had committed other crimes. The issue of identification was the major issue at the trial. The prosecutrix, after identifying relator as her assailant, testified that on the evening of the attack, he wore ". . . a blue knitted hat. . . .
Also, a Commonwealth witness, Mr. Carroll, testified that although he had gone to the assistance of the prosecutrix, he did not get a good look at the assailant's face; however, he testified that the assailant ". . . had a blue-sailor type, -- a naval type of hat on, wool and that is about all I can remember."
The Commonwealth's identification evidence was countered by the testimony of relator, his mother, and his wife, all of whom testified that relator had never worn a hat of any kind in recent years. Thus, the evidence that relator had never worn a hat was a major issue which relator sought to have the jury evaluate in determining whether or not there was a misidentification.
The judge not only instructed the jury that he did not know the significance of testimony concerning relator never having worn a hat, but also made statements that relator had committed other crimes. The comment of the court was as follows: "Now members of the jury, there was testimony that the defendant never wears a hat, or may, or may never wear a hat except when he is going out to rob a bank or never wears a hat unless he is going ice skating, or never wears a hat unless he is going out to commit some crime, or whatever. So what significance that has, I don't know you must say."
There is not one word of evidence in the entire record to support the trial court's comment concerning relator's robbing a bank or committing any prior crime.
Certainly, the impact of the unwarranted comment by the trial judge undermined the defense of misidentification and wrongfully portrayed relator to the jury as a person with a criminal record. Under these circumstances, the court's prior instructions to the jury that they were "the final arbiters of the facts" and that their "remembrance of the facts controls" was insufficient to remove the impact of the unfairly prejudicial remarks; indeed, no instruction could have cured this devastating comment. See, Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
Nor is there any merit to the suggestion made by counsel for the Commonwealth, at oral argument, that the impact was not great, because the remarks were apparently made merely in jest. Certainly, a criminal trial, where the defendant faces the loss of liberty, is not the place for the trial judge to resort to humor, at the expense of the defendant. Clearly, it was not considered a humorous matter to the trial judge at the time of sentencing when he imposed a sentence of 10 to 20 years of imprisonment upon relator.
The United States Court of Appeals for the Third Circuit, en banc, recently decided that a defendant was deprived of a fair trial when a prosecuting attorney inquired of the defendant on cross-examination whether he had committed a prior crime. United States of America v. Larry J. Gray, 468 F.2d 257 (3rd Cir. 1972). The Court granted the defendant a new trial, notwithstanding the fact that he could have been impeached by being asked if he had been convicted of the crime and notwithstanding the fact that the jury was instructed to disregard the improper question immediately after said question was asked. The Court expressed the view that cautionary instructions by the trial court were ineffective to erase from the minds of the jury the effects of advising the jury of the criminal background of the defendant. Of course, it is even more serious where, as here, such comments do not have a basis in fact.
The unfair prejudice to the defendant is even greater when the improper comment is made by the trial judge. The impact of a trial judge's comments to a jury is eloquently described by Chief Justice Hughes in Quercia v. United States, 289 U.S. 466, 469-71, 53 S. Ct. 698-99, 77 L. Ed. 1321 (1933):
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. . . .