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IN RE KRAVITZ

May 12, 1980

In re Ethel KRAVITZ


The opinion of the court was delivered by: NEALON

MEMORANDUM

Petitioner Ethel Kravitz was found guilty of the murder of her husband by a jury in Montgomery County, Pennsylvania in 1958. She sought to overturn that conviction through various judicial and extra-judicial proceedings for more than twenty-one years. On January 17, 1980, after evidentiary hearings into the substantive merits of her claims had been concluded, but before the legal issues could be presented for resolution, Mrs. Kravitz passed away. *fn1"

 Death terminates Mrs. Kravitz's long, personal quest for vindication. Her attorneys argue, however, that death does not end the instant habeas corpus action. They assert that petitioner's tarnished reputation and the operation of the Pennsylvania Slayer's Act, 20 Pa.Const.Stat.Ann. §§ 8801 et seq. (Purdon) (1975), which precludes petitioner's estate from inheriting through her murdered husband's estate, are "collateral legal consequences" that save her habeas corpus petition from landing "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577, 80 S. Ct. 909, 911, 4 L. Ed. 2d 963 (1960) (Warren, C. J., dissenting).

 After careful consideration, I must disagree. Neither the stigma of a murder conviction nor the pecuniary loss to her estate invest the deceased habeas applicant's collateral challenge to the validity of the 1958 conviction with the "live controversy" necessary to sustain this court's limited subject-matter jurisdiction. Accordingly, the petition for a writ of habeas corpus will be dismissed as moot.

 I.

 Pervading petitioner's efforts to reverse her 1958 murder conviction has been her strong desire to secure a declaration of her innocence; her interest in litigating the constitutionality of that conviction seems to have been only secondary. Indeed, Mrs. Kravitz has placed the finger on the man she claims actually killed her husband. She asserts that only some strange duress or compulsion exerted over her by the alleged perpetrator prevented her from divulging his identity at the time of the criminal investigation. During the hearings conducted in this case, however, Mrs. Kravitz, under oath, named her slain husband's brother-in-law, Morris Passon, as the real murderer. Passon, also under oath, vehemently denied the accusation.

 This sensational charge and Passon's cryptic involvement in the whole affair fuel the intrigue that surrounds this celebrated and highly publicized case. *fn2" But the mystery and sensationalism interjected throughout the proceedings must not obscure the fact that the federal habeas court's role is limited to ascertaining the constitutionality of a conviction, not its correctness. *fn3" Nor can the merits or demerits of petitioner's claims distract this court's consideration of the mootness issue. To put this matter in proper perspective, it is perhaps best to briefly relate the factual predicate for the constitutional issue presently before this court, and chronicle the procedural background of this protracted litigation. *fn4"

 Petitioner's husband was found dead in the marital bedroom of their home in Wynnewood, Pennsylvania, late in the afternoon of Independence Day, 1958. He had been shot several times and had been bludgeoned about the head and face. There were apparently no witnesses to the brutal slaying, but certain circumstantial evidence tended to inculpate petitioner and suspicion focused on her almost immediately. *fn5" Less than an hour after the police arrived at the Kravitz home, Captain Shaefer, in the presence of several other Lower Merion Township police officers, questioned petitioner concerning the murder. *fn6" During this interrogation, petitioner appeared distraught, and answered Captain Shaefer's questions hesitantly. Approximately forty-five minutes after the interrogation began, petitioner's pulse and blood pressure were checked by Dr. Shoemaker. Captain Shaefer resumed questioning petitioner twenty minutes later, but this interrogation lasted for only five minutes.

 At approximately 9:30 that night, petitioner was taken to the Lower Merion Township police station for further questioning. Montgomery County Chief Detective Charles G. Moody interrogated petitioner at the police headquarters for about two hours, from 10:30 P.M. to 12:30 A.M. Between 1:00 and 1:30 A.M. petitioner was advised that she was being charged with the murder of her husband. Petitioner was then questioned by District Attorney Bernard DiJoseph from 2:00 to 2:30 A.M. Following this interrogation, which was tape-recorded, petitioner was asked a few questions by Detectives Tammany and Waller concerning certain blood-splattered apparel. At no time during any of these interrogations was petitioner advised of her right to remain silent or of her right to assistance of counsel. *fn7"

 At the murder trial, law enforcement officers testified that petitioner had admitted wearing on the day of the homicide blood-splattered clothing found in the bedroom where petitioner's husband was slain. *fn8" Also during the trial, Detective Moody testified that petitioner had made contradictory statements regarding the route she had taken to the home of her husband's brother-in-law, Morris Passon, on the day of the murder. *fn9" The alleged murder weapon was found in a culvert along Morris Road, one of the routes Detective Moody said that petitioner admitted taking to the Passon home on the day of the murder. *fn10"

 No objections to the admissibility of her incriminatory statements were ever made at trial. *fn11" Nor does it appear that the voluntariness of these statements was questioned in her post-trial motions and direct appeal to the Pennsylvania Supreme Court. It seems that this issue was first raised when petitioner instituted the instant habeas corpus action in 1965. *fn12" While the admission of the challenged statements caused our Court of Appeals some concern, it affirmed Judge Follmer's dismissal of this claim on the ground that the Pennsylvania Post Conviction Hearing Act *fn13" seemed to offer a state judicial forum for its adjudication. *fn14" See In re Kravitz, 358 F.2d 734, 735 (3d Cir. 1966) (per curiam ).

 In September 1975, petitioner instituted an action in the United States District Court for the Eastern District of Pennsylvania, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was "null ...


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