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March 23, 1981

Julius T. CUYLER and the Attorney General of the Commonwealth of Pennsylvania

The opinion of the court was delivered by: GREEN


In this habeas corpus matter petitioner, Leroy Brown, charges that the state trial court erred in not suppressing his confession because it was obtained involuntarily and in violation of his Miranda *fn1" rights. Finding that petitioner has exhausted his state court remedies and that his confession was voluntary and not constitutionally defective in any way, the habeas corpus petition is denied. *fn2"

 Following a jury trial, petitioner was convicted of four counts of first degree murder and one count of criminal conspiracy stemming from the execution-style murder of four persons on February 18, 1974 in a house located at 5180 Viola Street in Philadelphia, Pennsylvania. The evidence before the state trial court judge supports the following findings of fact. Petitioner and a co-conspirator had been hired to kill one of the persons present at the Viola Street address. After the murders, petitioner fled Philadelphia and was arrested in Washington, D.C. on March 23, 1974 at approximately 11:15 a.m. The Miranda warnings were read to him and he was searched at the scene of his arrest; the search revealed that petitioner was carrying identification and two medicine bottles bearing his name. Petitioner was transported to the police station, he was handcuffed to a desk and again had read to him his Miranda warnings. His answers to the officers questions demonstrated that petitioner understood his rights. Petitioner stated that he did not want to make a statement without an attorney being present. The interrogating officers then stopped their questioning, left him alone, handcuffed to the desk. About one-half hour later, one of the officers telephoned Philadelphia and learned more of the factual circumstances which gave rise to the arrest warrant. The officer told petitioner about the telephone call to Philadelphia and gave him more details of the crimes. The officer then asked petitioner if he would like to make a statement and petitioner consented. Petitioner was again read his Miranda rights and the officer questioned him as to whether he understood his rights. He acknowledged that he understood his rights and stated that he wanted to make a statement. Thereafter, two statements were taken from petitioner.

 Approximately two or three hours after the first statement was signed, two detectives from the Philadelphia Police Department's Homicide Squad arrived at the Washington, D.C. police station. After reviewing petitioner's statement, the detectives saw petitioner at about 4:50 p.m. and advised him of his Miranda rights. The detectives asked him questions designed to test whether he understood his rights. On a card which contained the questions, petitioner wrote "yes" or "no" after each question and thereby indicated that he understood his rights. Petitioner informed the officers that he was not a heroin addict, but that he "popped pills" and that he was in a methadone program. He also said he would be needing methadone medication soon. In response to the officers' questions, petitioner stated that the medicine which was taken from him when he was arrested was for "aching bones." Petitioner began his second statement at about 5:05 p.m. and completed it about an hour later. He was not handcuffed at anytime during the taking of the second statement. Petitioner said that he could read a little and the officer handed the statement to him to review. He appeared not to be reading it so it was read to him and he then signed it.

 In a pretrial motion to suppress, appellant argued that statements he made after he was arrested should not be admitted at trial because they were made involuntarily and in violation of his Miranda rights. After a lengthy and thorough suppression hearing, the judge denied the motion stating on the record her findings of fact and conclusions of law. She concluded that petitioner had knowingly and intelligently waived his right to counsel prior to the police interrogation and that under the totality of the circumstances the statements were voluntary. In making her finding the judge considered petitioner's claim that at the time of questioning he was in pain because of the alleged gunshot wound and rejected it.

 At trial petitioner's statements were accepted in evidence and he was convicted of the charges. Post conviction motions were heard and denied by a three judge court en banc. On direct appeal to the Supreme Court of Pennsylvania petitioner argued, inter alia, that the statements made at the time of his arrest were obtained involuntarily and should have been suppressed. The court rejected all of the arguments, specifically finding without merit the claim of erroneous admission into evidence of statements allegedly made involuntarily, and affirmed the judgment. Commonwealth v. Brown, 482 Pa. 256, 393 A.2d 650 (1978) (per curiam).

 Thereafter, petitioner filed this habeas corpus petition in forma pauperis. Petitioner asserted his entitlement to the writ on the grounds that:

(1) his confession was unlawful because at the time the statement was given, he was suffering from gunshot wounds and the police refused to take him to the hospital until he had given a statement against his will,
(2) the trial court erred in finding that petitioner was competent to stand trial because on the third day of trial he was unable to understand the proceedings,
(3) the court erred in not ordering a sanity hearing when it was established by the testimony of doctors that appellant was unable to understand the proceedings,
(4) petitioner received ineffective assistance of counsel in that his counsel failed to request that he be committed to a hospital pursuant to 50 P.S. 4408,
(6) trial counsel was ineffective because he failed to establish an insanity defense,
(7) trial counsel was ineffective because he failed to present evidence showing that petitioner was intoxicated on the day of the crime and
(8) counsel was ineffective on the post-verdict motions.

 I referred the matter to a magistrate for a report and recommendation. The magistrate's report and recommendations were filed pursuant to 28 U.S.C. § 636. The report recommended that petitioner's application for a writ be dismissed for failure to exhaust state remedies as to the involuntariness of his statements and denied as to all the other claims.

 To afford petitioner a meaningful opportunity to serve and file written objections to the proposed findings and recommendations of the magistrate, I appointed counsel to represent him. Thereafter, counsel filed ...

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